On Day 11 of the Aadhaar hearings, senior counsel Gopal Subramaniam continued his fundamental argument laid down for the petitioners, that notwithstanding the progress in technology, the Constitution cannot be obfuscated. The main arguments today were on the various issues with the Aadhaar Act, such as excessive delegation, the impact of the use of algorithms in the Aadhaar architecture on the constitutionality of the system, and on how dignity, as a core of the right to privacy, is violated by the Aadhaar system.
Aadhaar Act does not meet tests of reasonableness
For the Aadhaar Act to be constitutional, the petitioners argued that it firstly needs to meet the tests of substantive and procedural reasonableness. To prove the reasonableness of the Aadhaar Act, it must, firstly, have a legitimate aim, one which is discernible not only from the ends of the Act but also the means used by the Act to achieve those ends.
Arguing that Aadhaar fails to meet this test, the use of biometric data, which is in itself flawed, and the use of algorithmic behaviour, which is irrational and outside the control of the authority using it, the UIDAI, was raised. The petitioners argued that when the potential for harm is overwhelming, the standards of scrutiny for the Act enabling the harm must be higher, and Aadhaar does not meet these standards.
To prove further that Aadhaar does not meet this test, the petitioners outlined several flaws with the Aadhaar Act as a whole.
Excessive delegation under the Aadhaar Act
They argued that, firstly, it suffered from excessive delegation. This means that the Aadhaar Act has conferred an excessive amount of rule-making or legislative power, to other authorities. For example, under the Aadhaar Act, several key processes and definitions have been left to regulation, for instance, the definitions of ‘biometric information’ and ‘demographic information’ under Section 2, enrolment and authentication processes under Sections 2 and 8 respectively, even the procedures for sharing information under Section 23 and publication of an Aadhaar holder’s details under Section 29 have been .
Further, reiterating an argument raised in previous hearings, the Aadhaar Act, or for that matter, any law, cannot validate the violation of a fundamental right in retrospect.
Aadhaar Act treats data as property
The petitioners had previously argued that the Aadhaar Act treated data as property, and anticipates money-making based on this data. In today’s hearing, they continued the argument, stating that a data protection law operates based on fairness and information sharing principles, criteria which the Aadhaar Act does not satisfy. The Aadhaar Act, they argued, cannot survive in the absence of a data protection law.
Preference to virtual person over real person
The petitioners argued that the sole of Aadhaar is continuous authentication. This, they argued, results in a preference to the virtual person over the real person. The ability to negate personhood in this manner, it was argued, causes both a civil and constitutional death of the person. Such a negation of the existential identity of a person through an algorithmic process, without human accountability, and no further access to justice under the Act, is clearly unjust.
The petitioners had also previously argued that this use of algorithms in the Aadhaar system has the effect of ‘disintermediating’ the State, or removing the State as an intermediary for the citizen. This, in turn, erases the accountability of the State. When dealing with constitutional rights, it was argued, the issues involved must be decided by a person, and not an algorithm, and Aadhaar prevents this. Even assuming that we have a benevolent state or a state that operates for the benefit of the people, it cannot be guaranteed that an algorithm which cannot and is not controlled by the State will be similarly benevolent.
Violation of dignity
The petitioners argued that dignity was the golden thread that runs between Articles 14, 19 and 21, and a law that violates this dignity is per se unconstitutional. Several examples of how Aadhaar can violate this dignity were cited. A crucial aspect of this dignity, it was argued, is that the most marginalized section of society should not be exposed as the most marginalized. Further, silos of information on human nature cannot be centrally aggregated. Lastly, the Puttaswamy judgment established the right of a person to control their personality. The surveillance potential of Aadhaar was also reasserted as a restriction on the people.
A person’s existential identity, it was argued, refers to the identity for survival, and this can include transactional identity. Both of these are protected by the Constitution. This existential identity, as per the petitioners, cannot be ‘judgmentalised’ by the State. The identification of a citizen through a number, they argued, is completely destructive of dignity. The negation of a person’s existential identity, even if by an algorithm, can have far-reaching consequences. Exclusion, in constitutional parlance, is discrimination, and any Act that leads to discrimination, even with the best of intentions, has to go.
Lastly, it was pointed that the rights guaranteed by the Constitution, , are not capable of being waived. Consent of a person, it was argued, thus has little use if a waiver of constitutional right results and this is particularly when no one can be fully informed of the workings of the algorithm that causes the waiver.
The arguments for the petitioners will continue tomorrow.
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.