Aadhaar Hearing in SC: “Power to Cause Civil and Digital Death”

The arguments against Aadhaar on the seventh day focused on exclusion and Aadhaar-related deaths.

Arguments continued on day 7 of the Aadhaar hearing in the Supreme Court.

(Photo: Harsh Sahani/The Quint)

“This degrades free individuals.”

Senior advocate Shyam Divan concluded his arguments for the petitioners on Tuesday, 6 February, with a reference to Mahatma Gandhi’s fight against the Traansvaal Ordinance (and Act) of 1913-1914. Gandhi had made the above quote about a South African law that had made it compulsory for every Asian in South Africa to register themselves with their fingerprints – failure to comply was a criminal offence, leading to deportation or fines.

Divan – the first lawyer to set out his arguments on why Aadhaar is unconstitutional –focused his arguments on the risks of exclusion that the programme creates, and the security flaws in the framework that compromise bodily integrity and autonomy.

He was followed after lunch by Kapil Sibal, also arguing against Aadhaar, who said that it was unconstitutional to require mandatory linking of Aadhaar to services, and that the power to deactivate a person’s Aadhaar number was incredibly dangerous – a “power to cause civil and digital death.”

Exclusion, Death, Dignity

Divan began the day by presenting the affidavit of Siraj Dutta, who had investigated two Aadhaar-related deaths in Jharkhand. One happened because the deceased’s pension was transferred to someone else whose Aadhaar was linked to the deceased’s. The other happened because the deceased was denied ration and pension because an authentication failed. Divan also pointed out how authentication of leprosy patients failed, as in the case of 11-year-old Santoshi.

Divan argued that these issues hamper the ability of a person to identify themselves, which was a core element of dignity. Divan also said that the argument of using Aadhaar to stop welfare leakage wasn’t a sufficient counter taking away of people’s right to identify themselves in a manner of their choosing, since Aadhaar could only tackle those leakages in a very limited manner – even with Aadhaar, people were still at the mercy of a PDS dealer, who could still misuse the system as before.

Justice Chandrachud acknowledged the point, but said that this couldn’t be a ground to render Aadhaar unconstitutional. However, he also noted that the exclusions from access to services caused by Aadhaar could mean that it violated Article 14 of the Constitution – the right to equality.

“How Can You Trust a System Like This?”

Divan next discussed an affidavit filed by security expert Rakesh Mohan Goyal, who had conducted audits of several entities who perform Aadhaar authentication services. The affidavit discussed how Aadhaar biometric data was also vulnerable, in particular through “skimming” of this information, and how private entities doing Aadhaar enrolment had been able to retain people’s biometrics.

Divan gave the example of the hacking of biometric data in Surat recently as an example of how the system can be exploited, and asked how the system could be trusted. He questioned the integrity of the whole Aadhaar architecture, given the number of people whose enrolment was blacklisted by the UIDAI (49,000), as well as the huge number of people who were denied an Aadhaar number because of duplication (6,23,000).

This number is bigger than the population of many states – Divan argued that it was impossible for so many people to have attempted to defraud the government; instead, what was happening were unjustified rejections.

An example of such unjustified rejections was found in the school attendance audit in Jharkhand – where there were more children than the biometric attendance records stated. Justice Sikri also noted that an unintended consequence of Aadhaar authentication failures in schools would be that teachers could later be hauled up for giving midday meals to flesh and blood children, who were, because of the mismatch, ghosts in the system.

Personal Autonomy at Stake

Divan closed his arguments by saying that every individual has an innate right over their body, and this applied to information about themselves as well. The insistence of the State to only recognise one form of identification for a person, no matter what other proofs were presented, was a violation of bodily integrity, he argued, and thereby a violation of Article 21 of the Constitution.

Even though the State has legitimate interests in identifying people for specific things, like driving licenses or passports, which could require the submission of fingerprints (like driving licenses or criminal investigations), Divan argued that it had no right of eminent domain over their bodies.

This means that the government can’t demand private bodily information for all services – the right to personal autonomy includes protection of one’s biometrics.

He ended by pointing out that the Aadhaar programme treats everyone as untrustworthy if they fail to cede their biometrics, and that it offers a dangerous dominance to the State over individuals if it continues to function in the unreliable, unlawful way it has been thus far.

Danger of Misuse

Sibal’s arguments focused on the dangers of giving up one’s personal information for Aadhaar and its linkage to so many things, including the way in which the UIDAI could deactivate someone’s Aadhaar number for “any other appropriate reason” under section 28 of the Aadhaar Act.

Noting Prime Minister Narendra Modi’s comments at Davos that whoever controls data can control the modern world, Sibal warned that once biometric and demographic information become part of the digital world, this becomes irretrievable, and there is a huge demand for this information. Aadhaar enables this information about each person to be handed over “on a platter”, he said.

Justices Chandrachud and Sikri engaged in a debate with Sibal over the way in which Aadhaar was being made mandatory under the Aadhaar Act and other laws such as the Prevention of Money Laundering Act (which requires linkage with bank accounts). Justice Sikri pointed out that this creates a presumption that every citizen is a money launderer.

The day’s hearing ended as Sibal discussed issues with access to authentication information under the Aadhaar regulations, and how individuals would lose access to this eventually, while the government would always have access. This was another way in which the Aadhaar system is open to misuse.

The judges have asked him to answer during the next hearing whether possible misuse can be grounds to challenge a law – there are many old SC judgments which say this is not possible.

(The information provided in this article is largely based on live tweets from the courtroom by @gautambhatia1988 and @prasanna_s.)