On Day 20 of the Aadhaar hearings, the Attorney General of India, KK Venugopal, commenced his arguments on behalf of the State. His primary argument was on how the benefits of Aadhaar through providing a right to life with dignity to the poor, outweighed the right to privacy. The right to privacy, he argued, must give way to distributive justice. The Bench, however, stated that political guarantees were meant to advance economic and social rights, and not instead be foregone for their sake. The Attorney General asked for the Court to balance the competing rights.
Tremendous effort went into securing Aadhaar
The first argument of the Attorney General was to address concerns with the security of the Aadhaar system. Tremendous effort, he argued, had gone into the security of this system, with examinations by several committees. Several alternatives including smartcards had been considered and rejected for being unsuitable to the Indian context. Aadhaar, he argued, was thus a serious effort to insulate deserving beneficiaries from the effects of corruption. The World Bank’s support to Aadhaar via the Identification for Development Report (the ID4D Report) was also cited.
Powerpoint presentation and video on Aadhaar security arrangements offered
To alleviate security concerns, the Attorney General offered to show a PowerPoint presentation by the CEO of the UIDAI on the security of the Aadhaar system, along with a 4-minute video on security arrangements for the CIDR, such as a wall thirteen feet long and five feet wide protecting the servers.
The Court asked for the legal contentions raised by the petitioners to be addressed first. A Word version of the PPT was also asked to be submitted initially. The Court outlined the legal contentions to include issues on privacy, anonymity, dignity, surveillance, aggregation, presumptive criminality, unconstitutional conditions, and absence of a law and security.
Aadhaar enables the right to life for the poor
The Attorney General commenced his arguments on the law by laying down the objectives of the Aadhaar project. He argued that at the time of independence, poverty was 66 percent, which had now been reduced to 27 percent. Intensive corruption, through middlemen and public servants, had led to diversions of public benefits to the tune of Rs 1,000 crores. The Aadhaar Act, he argued, was framed to address these fears.
Further, he argued, the Aadhaar Act was designed to have the least possible violation of privacy. Even before the Act was passed, he argued, enrolment in Aadhaar was voluntary, removing any question of violation of privacy. The right to life, he argued was not just mere animal existence, but the right to live with dignity. Aadhaar, he argued, ensured this.
The right to privacy must give way to distributive justice
The Bench, here, noted the interesting fact that the arguments of both sides were founded on the same rights, right to life and to dignity. The clash between these rights and the right to privacy was pointed to. The Bench then stated that the Attorney General’s argument seemed to be that the right to privacy must give way to distributive justice.
The issue of exclusion via Aadhaar was asserted to as an issue with this argument. To this, the Attorney General stated that no individuals had come forward or complained of exclusion. Complaints, he stated, were mainly by NGOs. The Bench, however, disagreed with this, pointing to the affidavits filed in this case, as well as the petitioners who had appeared before them in person.
Political guarantees must advance economic justice
The Bench, here, asserted that individual rights cannot be made subordinate to distributive justice. Political guarantees, it was argued must advance economic rights, as against foregoing political liberties for the sake of economic and social justice. The Bengal and Maharshatra famine and the crucial role played by the free flow of information in reducing the number of deaths in the latter were cited in this context.
Balancing competing rights
To this, the Attorney General argued that the fundamental right of the poor to live without hunger, it was argued, prevailed over the right to privacy. The Bench, here, stated that the poor had an equal right to privacy. The Attorney General responded by stating the need to balance the two rights.
To further emphasise this, he argued that Aadhaar was an enabler for millions of Indians, their right to food, livelihood and pensions. This, he argued, furthers Article 21 as well as the Directive Principles of State Policy.
Can consent be assumed?
He further argued that since enrolment prior to 2016 was voluntary, there was no question of violation of rights. The Bench, to this, stated that the consent of the people was for acquiring Aadhaar, and not to surrender their data or to commercialisation. Further, they questioned if there could be a waiver or assumption of informed consent.
Support to Aadhaar in the Aadhaar-PAN judgment
The Attorney General then went on to cite various parts of the Aadhaar-PAN judgment, arguing that there, the objectives of Aadhaar had been supported by the Bench. Various statements in support of Aadhaar in the judgment were cited such as that Aadhaar is the best way to achieve deduplication and to deal with issues like fake PANs, black money, and money laundering. The rejection of the Article 14, i.e., the right to equality, challenge to the Aadhaar-PAN linkage was also cited.
Why are pensions under Section 7 of Aadhaar Act?
The Attorney General then proceeded to read out various schemes that were covered under the scope of Section 7 of the Aadhaar Act. Here, the Bench questioned how pension could be included, since the section refers to ‘subsidies, benefits or services’, while pension was an entitlement or right of the person. The Attorney General responded that this was since pensions were drawn from the Consolidated Fund of India.
He also pointed to the issue of fake pension cards. The Bench, again, showed concern for the exclusion caused. Problems of non-resident pensioners who are not entitled to acquire Aadhaar, and of pensioners with dementia, whose fingerprints may not work for authentication were cited as examples of this issue. To this, the Attorney General stated that Aadhaar was not a necessity for non-resident pensioners, and mechanisms were established under the Aadhaar Act for people who are unable to authenticate.
Official identification as a basic human right
The Attorney General then argued that poverty was a violation of human rights. The 300 million poor people in India, he argued, deserved the right to live with dignity. Asking the Court again to balance interests, he asked what the choice of such people would be, between a right to life and a right to privacy.
Official identification, he argued, was a means of resolving this. It helps achieve economic development, participation in the electoral process, as well as in the provision of benefits by the government. A unique digital identity, he argued, was thus very important today. The World Bank’s ID4D report was again quoted in this context, which states in its foreword that official identification is more than a convenience, but a fundamental human right.
Less intrusive method of providing unique identity?
The Bench agreed to this argument on the need for a unique identity. However, they questioned that if a less intrusive method could be found to provide it. When the aim is to achieve identification, they argued, why was there a need for centralisation and aggregation of data. They questioned the centralised storage of data, and further pointed to the risks created by the collection of metadata.
The Attorney General, to this, reasserted that alternatives like smartcards had been considered and found to be unworkable. He further argued that the CIDR does not store data for the purpose of transactions. The Bench, here, pointed to the fact that the CIDR does maintain authentication records, which also poses a risk.
The Attorney General will continue his arguments on behalf of the State on 22 March 2018.
Read our past coverage of the on-going Aadhaar Supreme court hearing:
The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.