On day 6 of the Aadhaar case before the Supreme Court, Senior Counsel Shyam Divan continued the arguments against Aadhaar.
Issues raised included the unconstitutionality caused by the centralisation of data from the Aadhaar system, the legal basis of Aadhaar, and the veracity of the UIDAI and governmental claims on the savings through Aadhaar.
Centralisation in Aadhaar data aggregation
The difference between Aadhaar data collection and other forms of data collection is a question being asked repeatedly by the Bench. Previously, this was asked with respect to Google and also the use of an iPhone, both of which collect data extensively.
Today, the Bench questioned the difference between data collection by the State via the use of a PAN card and the income tax department, and that via Aadhaar. On the Bench asking, if the key difference is in the centralisation of collected data in the Aadhaar system, the petitioners agreed. For example, earlier information on a person’s financial transactions were with his bank, his call records with his TSP and locational data with (for example) the ISP. The Aadhaar system, the petitioners argued, allowed this data, that was normally in silos, to now be centralised in one place, thus enabling easy access and complete tracking of an individual.
The Bench then asked how this tracking differed from, say, a bank that offers all payments to be made from one place, such as insurance payments, bill payments, car insurance payments, etc. Many mobile wallets and mobile banking apps today, for example, offer such services, where you can conduct a variety of financial transactions from a single app. The Bench asked if the real issue is, again, to have norms preventing collection and use. To this, the petitioners argued that the issue was not of having a system of checks and balances, but about an architecture that enables pervasive surveillance.
Questioning the legal basis of Aadhaar
The petitioners then returned to the rule of law and limited government argument that was commenced in the last hearing. The Aadhaar system, it must be remembered, was commenced in 2009 via an executive notification. This was followed by the Aadhaar Act, much later in 2016.
This, the petitioners argue, violates the rule of law, a concept forming a basic feature of the Indian Constitution, which says that the nation, is governed, not by the rulers or the people’s elected representatives, but by law. This ensures that the powers exercised by such authorities are limited by law. This can also be seen in Article 21 — which states that no person can be deprived of their life or liberty except by the authority of the law.
The petitioners argued that the notification setting up Aadhaar made no mention of biometrics or fingerprints, thus violating norms of taking demographic data under the Census Act, and norms on the collection of fingerprints under the Identification of Prisoners Act, the Bombay Habitual Offenders Act, etc. The UIDAI, they argued, also violated norms on the right to privacy, which has been recognised since 1975 and upheld by the Supreme Court. The UIDAI also violated multiple Supreme Court orders mandating that it be voluntary. They went on to argue that the UIDAI took no responsibility for the safety of data, and also actively funded the SRDHs, without any statutory backing.
An individual’s right to develop their personality
Continuing the argument on limited government, the petitioners argued that this concept implied that governance was a shared enterprise between the people and the state. This includes the idea of space, that the state is not necessarily aware of every activity of the citizen, and that the citizens have a choice in establishing their identity. Individuals, they argued, have a right to develop their personalities without being tracked or registered. Additionally, people have a right not to have their everyday transactions conditional on a barter of their biometric information.
Challenging Aadhaar claims on welfare and savings
Lastly, the petitioners challenged several of the state’s statements made to justify the introduction of Aadhaar:
1) Aadhaar provides people with an identity — The petitioners pointed to the governmental statistics that only 0.3 percent of people used the introducer system to acquire an identity for the first time through Aadhaar. This is a limited number of 2 lakhs, and not that these people did not deserve an identity, but this number does not justify such an invasive system.
2) World Bank report of $11 billion savings — The petitioners argued that this number was disputable. This $11 billion claim was originally linked to an article by Shweta Banerjee, which quoted this number as the total value of transactions from 5 schemes. No mention was made of savings, thus discrediting the World Bank’s claims. The resignation of World Bank Official Paul Romer, over lack of integrity if data, was cited as an example in support.
3) 3,000 crore savings from MGNREGA scheme — The petitioners argued that of the 74 lakh NREGA job cards, the government stated that 63,000 were fake, indicating a maximum saving of 127 crores.
4) LPG subsidy savings of Rs 14,000 crores — The petitioners argued that cabinet secretariat minutes show an annual subsidy saving of Rs 91 crores. Moreover, as per a report of the Comptroller Auditor General, these savings could not be attributed to Aadhaar but a previous scheme of the NIC to weed out duplicates.
Exclusion through Aadhaar
The petitioners had previously argued that Aadhaar’s concept of ‘one nation, one identity’, implied that Aadhaar was premised on the assumption that India is ‘a nation of knaves’, and that if you didn’t have an Aadhaar number, you are a crook. This, they argued, leads to a complete break down of trust between the nation and its residents.
While challenging the Aadhaar claims, the petitioners also pointed that the CAG report on the LPG subsidies, in fact, stated that part of the savings was due to people not linking to Aadhaar, indicating exclusion. The petitioners then pointed to affidavits stating the starvation deaths of people in Jharkhand due to Aadhaar linkage failures, and on villagers testimonies of ration, dealers tampering with grain records to high leakages.
The Bench summed up the petitioners’ argument that the Aadhaar project was causing more exclusion than inclusion, and was thus unconstitutional. The petitioners agreed with the Bench’s statement that their argument was that the larger public interest could not be used to justify the ‘extinction of individualism’.
The arguments will continue next Tuesday.
Read our past coverage of the on-going Aadhaar Supreme court hearing:
The author is lawyer and author specialising in technology laws. She is also a certified information privacy professional.
Updated Date: May 11, 2018 10:41 AM