Key Arguments Against Aadhaar in Supreme Court

The Aadhaar architecture is capable of tracking, tagging and profiling of individuals, says a lawyer.

India’s top lawyers, arguing against the validity of Aadhaar in the Supreme Court, have highlighted concerns about everything — from possible citizen profiling and state control, to denial of public services and hasty passage of the law making the biometric ID mandatory.

Attorney General of India KK Venugopal on 21 March, started the government’s counter after the petitioners completed their argument in the case that will decide the fate of the world’s largest biometric identification programme. A five-judge Constitution bench headed by Chief Justice of India Dipak Misra is hearing the matter.

Another Constitutional bench, in a verdict stemming from the Aadhaar matter, has already ruled that privacy is a fundamental right. The lawyers cited the judgment in the main case, highlighting worries about the security of Aadhaar data and its possible misuse.

Here are the key arguments made against Aadhaar by the top lawyers representing the petitioners:

Shyam Divan

Divan was the first counsel to start the arguments on behalf of the petitioners. His arguments challenged the Aadhaar programme, the Aadhaar Act, 2016, and related entities. He argued:

• The state is constitutionally bound to provide subsidies, benefits and services to its citizens. Aadhaar makes the delivery of these conditional on citizens parting with their biometric and demographic information. The petitioners challenged Section 7 of the Aadhaar Act on this ground.
• The Aadhaar architecture is capable of tracking, tagging and profiling of individuals and, hence, it is unconstitutional.
• The UIDAI has the power to cancel the Aadhaar number anytime with the citizen having almost no redressal mechanism. That deprives him of services for which he or she would need an Aadhaar number.
• Section 57 of the Aadhaar Act extends the Aadhaar platform to government and private bodies, which makes it capable of turning into a surveillance state.

Kapil Sibal

• In light of the judgment in Right to Privacy, aggregation of sensitive personal information of individuals cannot be allowed.
• There is no concept of consent in the Aadhaar Act and it is only ‘illusory’ as without Aadhaar authentication a person will be denied benefits, services and subsidies.
• Aadhaar violates informational privacy which has been recognised by the judgment in Right to Privacy case.
• Aadhaar fundamentally violates the balance between the citizen and the state.
• In absence of any “compelling state interest”, the collection of information of citizens violates Article 14 of the Constitution.
• Citizens cannot be forced to get an Aadhaar card if the state fails to account for subsidies, services and benefits and gives hypothetical figures of the savings.

Arvind Datar

• The Aadhaar Act is unconstitutional as it could not have been passed as a money bill — ones that do not require Rajya Sabha’s assent.
• Linking of bank accounts with Aadhaar violates rights of a citizen guaranteed under Article 14 and 21 as they cannot operate accounts without linking it with the unique ID.
• There is no valid reason provided for the linking of bank accounts with Aadhaar.
• Aadhaar will destroy decisional autonomy (right of choice) which has been recognised in the Right to Privacy judgment.
• Violates the principle of proportionality and rule of law as not having an Aadhaar destroys the existence of an individual.
• The Supreme Court judgment in Section 139AA of Income Tax Act, which mandates linking of Aadhaar, needs to be re-looked after the Right to Privacy judgment.

P Chidambaram

• Passage of Aadhaar Act as a money bill sets a dangerous precedent.
• Certain provisions of the Aadhaar Act have no relation to the nature of a money bill.
• There are strict criteria of what will qualify as a money bill, which bypasses the scrutiny of the Rajya Sabha as well as takes away the power of the President to send the bill back to Parliament for reconsideration.
• Provisions of the Act which do not fulfill the criteria of a money bill cannot be severed once the bill has been passed. Hence, the entire law needs to be struck down.

(This piece was originally published on BloombergQuint.)