Editor's Note: This copy was published on xx May, 2018. It is being republished in light of the Supreme Court's verdict on the constitutionality of Aadhaar likely being pronounced tomorrow.
On Day 38 of the Aadhaar hearings, senior counsels Gopal Subramanium, Arvind Datar, P Chidambaram, KV Viswanathan, and PV Surendranath concluded the rejoinder for the petitioners. The Supreme Court reserved its judgment. The Attorney General mentioned that this has been the second longest hearing in Indian history, with the longest being for the Kesavananda Bharati case.
Section 7 makes dignity conditional
First, senior counsel Subramanium continued his rejoinder for the petitioners. He commenced with arguing that if the purpose of Section 7 was to further the dignity of an individual, as argued by the State, this could not be done by making it conditional since dignity is an inalienable and inherent right. The Bench here, pointed to the issue of deduplication and reaching the correct beneficiary.
No evidence that Aadhaar achieved seamless delivery
The counsel next questioned if Aadhaar really was an instance of affirmative action (an action to favour those suffering from discrimination). He argued that it may be possible that there is mala fide intention behind the Aadhaar Act, but there was no evidence that the stated purpose of achieving seamless delivery through the Act, was actually being achieved. In fact, the only evidence available is that of exclusion. Aadhaar, he argued, only reinforced the asymmetry of power in favour of the State, enabling it to limit citizen rights.
Consider the true purpose of the law
A claim to a proper purpose, he argued, is not a proper purpose. The Aadhaar Act, he argued, is not an instrumentality to deliver services, but was a means of identification. He argued that the true purpose of the law must be taken into consideration. Authentication, he argued, is at the heart of the Aadhaar Act, and failure of authentication is a ground for denial of services.
Lack of oversight
On turning to the issue of lack of oversight of requesting entities, the Bench observed that an Act like Aadhaar needs a hierarchy of regulators, who are absent. The counsel further pointed out that the people’s data was being taken by the state without having a strong data protection framework backing it.
‘Subsidies, benefits and servers’
Further, under Section 7, the terms ‘grant of subsidies, benefits and services’ are expressions of condescension, instead of being treated as an entitlement. He questioned if affirmative action to rights under Article 14, 15, 16, 17, and 21 could all be made conditional. The burden to authenticate and establish identity had been imposed on the people. The Bench, here, observed that whether a subsidy is a benefit or a right is an issue to be decided.
The Bench observed here that Section 7 is only an enabling provision, questioning how the central government was guided before exercising its discretion to issue notifications under this Section. The counsel here, argued further that Section 7 had virtually been interpreted to be mandatory as opposed to discretionary, making citizens subservient to it.
Aadhaar Act should be completely struck down
The Aadhaar Act, he argued, needs to be struck down completely as it fails the tests laid down in the Puttaswamy case, there was no legitimate aim since the real aim differs from the purported one, there was no law when Aadhaar was implemented, and there is no proportionality.
Quoting Ambedkar, the counsel then argued that a political democracy rests on four premises: an individual is an end in himself, he has certain inalienable rights guaranteed by the Constitution, he shall not be required to relinquish any of his constitutional rights as a price of any privilege, and lastly, the state shall not delegate powers to private persons to govern others.
Further, he argued that the doctrine of the possibility of misuse does not apply here since there is an actual denial of rights in the case of Aadhaar. Praying for the Aadhaar Act to be struck down completely, and the architecture and database destroyed, he concluded his arguments.
Aadhaar cannot be a Money Bill
Senior counsel Arvind Datar then commenced his rejoinder, arguing that Aadhaar cannot be a Money Bill, and can at most be a financial bill under the Constitution. The doctrine of severability (where the unconstitutional portion of an Act only will be struck down, as opposed to striking down the entire Act) further, will not apply to Aadhaar, since that is only applicable to validly enacted laws.
He further argued that the cases of Mohd. Saeed Siddiqui and Yogendra Kumar Jaiswal on the immunity to Money Bills should be overruled. The finality of the speaker’s decision under the Constitution, he argued, did not mean that the bill cannot be subject to judicial review.
Aadhaar-Bank account linking and the new eKYC rules
Next, he turned to the issue of Aadhaar in relation to the Prevention of Money Laundering Act and Rules. He pointed to the impropriety of amending the RBI Circular on KYC to make Aadhaar mandatory after the issue was pointed out in Court. He further argued that Aadhaar’s use was not confined to banks and had gone beyond that scope, being made necessary for mutual funds, insurance policies, and credit cards, among other things. The Aadhaar Act, further, was not justified under Article 300A of the Constitution, or the constitutional right to property.
He further argued that Aadhaar could never be used to resolve problems like black money and money laundering since the sources of such money is different. These issues, he argued, were being used as a ruse to collect people’s biometrics.
Section 57, he argued, should be completely removed from the Aadhaar Act. Any use outside of Section 7, further, was in complete violation of the Puttaswamy judgment. Section 139AA of the Income Tax Act on Aadhaar PAN linkage, further, is inconsistent with the Aadhaar Act. Lastly, he argued that should be an option of opting out of Aadhaaar.
Money Bill restricted ‘only’ to Article 110 matters
Next, senior counsel P Chidambaram commenced his rejoinder. He argued that the Attorney General’s interpretation of the term ‘only’ under Article 110 was erroneous. Clause (g), which allows matters incidental to the specific matters to be included in a Money Bill, he argued, must be interpreted very restrictively. The provision, he argued has to be incidental to the specific matters listed under clauses (a) to (f) of Article 110, in order to be valid. Clause (g) he argued, is not a substantive provision.
Further, he argued that the cases of Yogendra Kumar Jaiswal and Mohd Saeed. Siddiqui were not good law. The implications of passing a non-Money Bill as a Money Bill, he argued, are extremely serious, since one half of the Parliament is completely disabled from making any amendments. Further, this denudes the highest constitutional authority of the country, the President of India.
Aadhaar is a mockery of Article 110
He further argued that there was no provision in the Constitution which gives the Court the power of severability in the case of an invalidly enacted legislation. The court, he argued, cannot save an Act so fundamentally unconstitutional as to be passed without the participation of the Rajya Sabha and without the assent of the President. With this, describing this as a mockery of Article 110, he urged the Bench to strike down the Aadhaar Act since it is not a Money Bill.
Least intrusive measure and proportionality
Senior counsel KV Viswanathan then commenced his rejoinder.. He countered the State’s argument that the least intrusive measure is not a facet of proportionality, as completely wrong. Attempting to balance the right to privacy and the right to food, he argued, is wrong. Section 59 granting retrospective validity, further, could not protect Aadhaar at the time the Act was not enacted. The State, he argued, could not discharge their duty by subjecting the poor and downtrodden to a technological menace. The harmonisation of rights, he lastly argued, was being misapplied by the State in its arguments.
Lastly, senior counsel PV Surendranath presented his rejoinder on the point of excessive delegation.
With the hearings completed, the Bench reserved the matter for judgment.
You can read our complete coverage of the Aadhaar Supreme Court case below:
The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.