Fear of Misuse Cannot Lead to Terming Aadhaar Unconstitutional: SC

SC is hearing challenges to the constitutional validity of Aadhaar with respect to fundamental right to privacy.

The Supreme Court on Tuesday remarked that mere possibility of misuse cannot be the reason to declare the Aadhaar law unconstitutional, after senior advocate Kapil Sibal argued that the information provided to the government can be prospectively misused.

Justice DY Chandrachud said the possibility of misuse is no ground to declare a law unconstitutional and for the court to strike down a law, petitioners have to establish that it is arbitrary.

Commencing his arguments on pleas challenging the constitutional validity of Aadhaar scheme, Sibal argued before the five judge constitution bench headed by Chief Justice Dipak Misra, that personal data is already out in the public domain.

"Once a genie is out of the bottle, it cannot be put back...," he said, adding that the whole procedure is wrong as there is no check in taking Aadhaar details.

The constitution bench is hearing challenges to the constitutional validity of the Aadhaar scheme on the touchstone of the fundamental right to privacy on a batch of petitions by former Karnataka High Court Judge K.S. Puttuswamy, Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon and others.

The government is creating a "monolith, a system with no choices," Sibal, appearing for one of the petitioners, argued, saying it was collecting data to destroy a person's choice.

Identity is a matter of proof but when we want to state our identity, the State says we can do it only in one particular way. The State tells me that in order to get a certain service I am entitled to, I have to get Aadhaar. It says I have no other choice. If I am a widow, Scheduled Caste or Scheduled Tribe community member, my caste certificate or my ration card or BPL card will not establish my identity. Only an Aadhaar card will do...

Kabil Sibal

"My status gives me the right to my entitlement. My identity has nothing to do with my entitlement. So how can there be a condition in law to deny me my rightful entitlement because my identity cannot be established except by Aadhaar? Is this procedurally and substantively reasonable? he asked.

Sibal further told the court that Aadhaar is nothing but "right to Information for the state" and that "information is power and if the power is given to state, it will use it like never before".

Aadhaar can't identify whether a person is a terrorist or a money launderer unless you have information of the crime, he said, adding that there is no technology in the world which has not been misused. "The same technology can benefit mankind, the same can destroy it," Sibal added.