New Delhi: After going on to become the second-longest hearing in the history of the Supreme Court – spanning 38 working days and nearly five months – a five-judge bench is finally set to deliver its verdict in the Aadhaar case.
The ‘Aadhaar case’ is shorthand for a group of petitions that challenge the constitutional validity of the Centre’s flagship Aadhaar programme and the 2016 law that enables the scheme.
While the Aadhaar initiative started as a self-contained unique identification programme aimed at curbing leakages in India’s welfare system, it has since then morphed into a sprawling identity ecosystem that looks to integrate itself at every point the state interacts with citizens, or rather residents of India.
This unrelenting push – which has in turn set off the ‘Should Aadhaar be voluntary or mandatory?’ debate – started under the UPA-II administration and accelerated under the Modi government.
The problems with Aadhaar and the broader Unique Identification Authority of India ecosystem are numerous and range from security and privacy violations to large-scale welfare exclusions.
What are the issues at stake? What did the petitioners ask for? The Wire breaks it down.
How did the Aadhaar hearings start?
While the first petition challenging Aadhaar was filed in 2012, the process for this case was kicked off by a October 2015 judgment by the Supreme Court.
This judgment allowed the use of Aadhaar in a number of government schemes, but maintained specifically that the “purely voluntary nature” of Aadhaar would continue till the court decided one way or another on the validity of the system through a constitution bench.
Importantly, in the hearings that led up to the October 2015 judgment, the then attorney-general Mukul Rohatgi denied citizens had a fundamental right to privacy. The government’s contention became a crucial sticking point, because until this question could be decided, the larger constitutional challenge to Aadhaar could not be heard by the Supreme Court.
For almost two years thereafter, the matter remained in limbo until Chief Justice Dipak Misra set up a nine-judge bench in July 2017 to decide the ‘right to privacy’ question. A month later, the bench ruled that Indians enjoy a fundamental right to privacy, a right that is protected under Article 21 of the constitution.
This paved the way for the final Aadhaar hearings to start. They eventually began in January 2018, the judgment for which will be out on Wednesday (September 26, 2018).
What was argued in court?
Though a vast range of arguments were made out against Aadhaar in court, broadly speaking, there are four major categories. A few of these, as pointed below, don’t fall into these buckets.
Also, it’s important to remember some of the challenges mounted are against the Aadhaar project as a whole and some of them are more legalistic in nature and are against the Aadhaar Act.
1) Surveillance State Argument
A bulk of the arguments that generated newspaper headlines had to do with whether or not the Aadhaar programme helped create the infrastructure that would transform India into a surveillance state. Aadhaar would create, as one lawyer put it, “a system of centralised data storage, and tracking of citizens’ transactions over the course of a lifetime”.
Multiple advocates for the petitioners argued in this vein, and that by creating a surveillance state, the biometric authentication programme violates the right to privacy under Article 21 of the Constitution.
2) Consent and Welfare Exclusion Arguments
A number of lawyers, arguing on behalf of the petitioners, have pointed towards the problem of ‘consent’ as it pertains to Aadhaar.
The first is what senior advocate Kapil Sibal calls “illusory consent”. The consent provisions in the Aadhaar Act are “illusory” or uninformed because the biometric authentication system has expanded far beyond what it was initially conceptualised to be. With Aadhaar linking being declared mandatory from everything for entrance exams to mobile SIM cards, it’s impossible to know what you’re signing up for when you get one.
Other arguments around consent include whether citizens have the right to decide whether they want to participate in a system of information collection, storage and use that was set up by the government. By making Aadhaar mandatory, the petitioners have argued, the state has violated various elements of choice and self-determination that come under Article 21.
Challenges raised on the issue of exclusion, and on how Aadhaar has worsened exclusion in terms of subsidy delivery and entitlements, mostly are aimed at the constitutionality of ‘Section 7’ of the Aadhaar Act, which says that possession of an Aadhaar number can be made mandatory for anyone seeking to benefit from a subsidy or service that the government pays for or provides.
The petitioners have broadly argued that by making subsidies dependent upon biometric authentication, the problem of exclusion from welfare benefits has worsened. As advocate C. Uday Singh noted in his written remarks, the “state’s provision of administrative fixes such as notifications that allow for other forms of ID to be displayed if biometric authentication fails, cannot cure the unconstitutionality in Section 7 itself”.
3) Technical Arguments
There are a number of technical-oriented challenges that have been mounted, some of which pertain to security and data protection issues with the Aadhaar programme. Broadly-speaking, multiple lawyers have argued that the UIDAI’s process of data collection and storage is deeply compromised.
The concerns that were raised on this point were in part what sparked the humorous observation by attorney-general K.K. Venugopal that Aadhaar data remained secure behind a complex that had “13-feet high and 5-feet thick walls”.
Another interesting technology-centric argument that was made was that biometrics by their very nature are probabilistic – and that their unreliability increases naturally as the size of the core database increases. The probabilistic nature of technology, it was argued, violates a citizen’s right to welfare and subsidies.
Because of its probabilistic nature, the use of biometrics in Aadhaar is what the petitioners call arbitrary and thus violative of Article 14 of the Constitution.
4) Legal process arguments
The most overarching challenge to the Aadhaar Act stems from how it was pushed through parliament as a money bill. As The Wire has reported at length, because the Act was presented as a money bill, it did not have to secure an affirmative vote in the Rajya Sabha.
The petitioners have argued the legislative process behind the enactment of the Aadhaar Act is deeply flawed and thus is problematic.
What are the petitioners asking for?
Senior advocate C. Uday Singh’s closing and written statement is particularly illuminating in this regard. Because there are so many petitioners, what they have asked and argued for also differs.
But to summarise, there are four main outcomes. These also mirror what the Supreme Court may end up deciding on the issue.
1. The first is that the five-judge bench should declare both the Aadhaar programme and the Aadhaar Act as unconstitutional (for all the reasons mentioned above). Consequently, even voluntary use of the biometric authentication system should not be permitted.
2. The second is that voluntary use of the Aadhaar may be permitted if there are extra safeguards added by the government. These include including new clauses to the Aadhaar Act that provide for an opt-out (an individual should be allowed to delete his Aadhaar number from the system), and curb data-sharing and sale of data.
3. If the general arguments against Aadhaar and its enabling legislation are not accepted, the Supreme Court should nevertheless consider on a case-by-case basis the various areas in which the Modi government has declared Aadhaar mandatory. This includes mandatory Aadhaar requirements in over 130 government programmes (subsidies, welfare etc), for mobile phones, for bank accounts, for income-tax filings and so on.
In each case, the state must apply a rigorous proportionality test.
4. Even if the programme or legislation is not declared unconstitutional, specific sections of the Aadhaar Act or specific regulations that violate constitutional rights should be either struck down or read down.
What are the contentious parts of the Aadhaar Act?
1) Section 57: A part of the act that has allowed expanded use of Aadhaar in the private sector and by private entities.
2) Section 2: This section, petitioners have argued, provides an open-ended definition of personal information, thus opening the door for a wide range of uses such as that of DNA.
3) Section 47: The Wire has written before about this part of the Aadhaar Act, which allows only the UIDAI to file a police case or FIR in the case of data breach. Senior lawyers have argued that this clause allows “back-door nationalisation and transfer of ownership of personal data from the citizen to the State”.
4) De-activation regulations: All bits of the Aadhaar Act that allow the authorities to unilaterally deactivate an Aadhaar number without a pre-decisional hearing have been extremely controversial. The petitioners have argued that this process requires greater responsibility and oversight as inadvertent or malicious deactivations could result in denial of government services.
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