Asheeta Regidi Feb 14, 2018 19:55 PM IST
On Day 10 of the Aadhaar case, the main arguments were on the power of knowledge through metadata and the resultant privacy concerns, on the constitutionality of making the receipt of governmental benefits conditional on the waiver of fundamental rights, and lastly, on whether a system like Aadhaar is proportional to the objects sought to be achieved. A discussion also ensued between the Court and the counsel on the reasonability of requiring a minimal form of identity to receive benefits. Senior Counsel Kapil Sibal concluded his arguments, stating that this case was the most important case in Indian history since the ADM Jabalpur case.
On the power of information
The first point of argument was on the key differences between the Aadhaar system, and Israel’s ID system, which, unlike Aadhaar, is voluntary and does not authorize the collection of metadata. The often cited Regulation 26 of the Aadhaar (Authentication) Regulations, allows the authority to store metadata relating to the authentication transaction. The petitioners had during previous arguments discussed how such metadata was being collected in the Aadhaar system and the information it revealed, including its ability to enable real-time tracking.
To emphasize the concerns with this tracking, the petitioners quoted from the Puttaswamy judgment, which had discussed the power of information as knowledge. In particular, the judgment had stated that ‘electronic tracks’ created a powerful means of knowledge, information which in silos is inconsequential, but in aggregation could disclose the nature of a person. To further emphasize this point, that the high valuation of WhatsApp when it was purchased by Facebook, was on account of the information it provides, was discussed.
Based on this, the petitioners stated that while it cannot be argued that the State cannot insist on a national ID, it must be ensured that that ID is not public and is not in a centralized database. The conflict, according to the petitioners, is between public interest on the one hand and personal information in the public domain on the other. In support of this, the recent reports of the woman who was forced to deliver her child outside a hospital was also brought to the Court’s notice.
Govt benefits and waiver of fundamental rights
A fundamental concept under constitutional law is the doctrine of unconstitutional conditions, which prevents the government from making a person’s receipt of governmental benefits conditional to the waiver of a constitutional right. Pointing to the violation of the doctrine by the government, the petitioners argued that this prevented the government from denying benefits and entitlements to a person only for want of an identity. This, they argued, was not a question of whether or not the Aadhaar infrastructure was defective, but that even if it was flawless, one form of identity alone cannot be mandated.
For both a citizen who does not have his Aadhaar card, and for one who refuses to take an Aadhaar card, his rights and entitlements as a citizen are abrogated. These governmental benefits, it was argued, flow from Part III of the Constitution, and the denial of them amounted to a denial of fundamental rights.
Is requiring a minimal proof of identity a reasonable requirement?
At this point, the Bench observed that when an entitlement depends on who the person is, wasn’t it reasonable for the government to require minimal proof for that? The petitioners answered that the entitlement relates to a person’s status, a factor which Aadhaar does not establish. So long as a person can prove his identity for that particular entitlement by any method, he should be entitled to receive it.
The petitioners agreed that it is reasonable to be required to prove status in order to receive a benefit, but a person has a right to prove this status in a reasonable way. To emphasize this, the petitioners listed some of the schemes for which Aadhaar had been made mandatory including for the rehabilitation of bonded laborers and the national child labour scheme. The main issue, in the words of the Bench, was on whether it is constitutional to provide only one option of proving identity, and whether you can barter one fundamental right for another.
Is the Aadhaar system proportional to its objectives?
The petitioners have long been arguing that the very concept of Aadhaar is inconsistent with the concept of proportionality. Arguing further on this, the petitioners listed the many issues with the PDS system as pointed to in the Wadhwa Committee Report, arguing that Aadhaar resolves only one of those issues (identity fraud). The Bench observed here that the failure of Aadhaar to resolve other flaws will not make it unconstitutional, to which the petitioners countered that what this failure establishes is the lack of proportionality of Aadhaar.
The Bench here, observed that IDs can be misused, such as the issue of multiple passports, and the advantage of Aadhaar was in that it resolved this issue. To this, the petitioners again pointed that there was no proof that the Aadhaar system could also not be similarly misused, that the same person could obtain multiple Aadhaar IDs as well. Pointing to the lack of proportionality again, the misuse by some persons of an identity system could not be used to allow the State to make everyone get an Aadhaar card.
In summary, Kapil Sibal argued that this case was the most important case in Indian history since the ADM Jabalpur case. The ADM Jabalpur, it was argued, refers to a limited regime, i.e., a suspension of fundamental rights during an emergency only, while Aadhaar refers to an unlimited regime. The Bench, the petitioners argued, must decide if the people live in a country where the people have choice, or where the State is the arbiter of that choice.
Senior Counsel Gopal Subramaniam commenced his arguments for the petitioners. These will continue on Thursday.
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.