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Constitutional Validity of Aadhaar, Day 10: “Consent is illusory”

This is a record of the proceedings in the Supreme Court bench hearings on Feb 13, 2018 on the Constitutional validity of Aadhaar. You may read the previous days here: Day 1Day 2Day 3, Day 4, Day 5, Day 6, Day 7, Day 8, Day 9

Senior Advocate Kapil Sibal continued his arguments on behalf of the petitioners by reading out the definition and purpose of a biometric database from the National ID law of Israel. He pointed out the voluntary nature and consent of the ID cards handed to the residents. (The new IBI Regulations on June 1, 2017 make facial recognition information and fingerprints from which biometric data was derived mandatory for the issuance of an identification document. Facial recognition data is saved in a special biometric database, but if the individual does not consent to storing fingerprints, the fingerprint record is erased after the identification document is issued.)

Mr. Sibal further noted that there was no provision for metadata in their law.

Mr. Sibal then referred to the Aadhaar Act and its mandatory and lifelong anture and described that consent is illusory. While the database can only be used for purposes authorized by law, Mr. Sibal pointed out how the purpose of ‘national security’ is misused in India. Some NGOs are targetted for national security. He drew attention to the regulation that says Aadhaar can be deactivated for national security purposes. (this would deprive a person of a mandatory document – civil death)

Mr. Sibal’s first proposition- Information is power.

Mr. Sibal read out the following references to back his proposition:

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  • The Puttaswamy judgment which observed that information is knowledge – relevant paragraph on the power of information and knowledge.
  • Excerpts from Harvard Business Review which talks about WhatsApp acquisition by Facebook for a very high valuation. Points out why are all these services so highly valued-because of the information they provide.
  • Third paragraph of the same chapter. Refers to the power of networks. Gives examples of Uber and other services.
  • Puttaswamy judgment – quote about Airbnb, Uber, etc owning nothing but aggregated information that is normally scattered and unconnected. He said that this was also noted in the Puttaswamy judgment. In silos, this information is inconsequential. Aggregated, it provides a picture of personality.
  • Paragraph 111 of Puttaswamy judgment. Mr. Sibal said that while we can’t argue that State cannot insist for national ID, we can ensure that the ID is not in public, not in a centralised database and that when I am transacting with a person, the ID can be established. He distinguished between public interest and personal information in the public domain – an individual’s personal travel has nothing to do with public interest. He gave the example of the woman who had to deliver a baby outside the hospital for want of Aadhaar. Mr. Sibal stressed that hospital/health information is not public interest. He argued that the State cannot choose how an individual proves their citizenship, only the individual can.
  • Paragraph 311 of the privacy judgment.

Mr. Sibal’s Second Submission – The Aadhaar Act itself

Mr. Sibal stated that while Section 3 appeared to provide for Aadhaar to be voluntary, it is actually mandatory in reality. He read the following references from the Aadhaar Act to support his statement.

  • Section 32: log of such information is created and stored everytime a transaction is authenticated. However, the purpose of the authentication will not be known.
  • Regulation 26: metadata is also collected and stored.
  • Section 57: even in the absence of this section, some other Act could have provided for the use of Aadhaar for other purposes. However, this section brings out the true intent of the Act to establish it as an exclusive proof of identification for purposes other than the ones stated in the object.

Mr. Sibal said that consent is for authentication. But the law requires to get the entitlement only through Aadhaar. What then, is the purpose of obtaining consent?

Mr. Sibal’s third submission – concentration of information in a single entity

Mr. Sibal stated that such a concentration gives enormous power and read out parts of the Puttaswamy judgment regarding this. He pointed out the provision for audits in the Aadhaar Act and said that the respondents should provide the reports of the audits that have been done.

Mr. Sibal’s fourth submission – proportionality

Mr. Sibal spoke about when can a court look into the proportionality of a statute. He pointed out that for an act to be proportional, its objectives must be examined and whether the policy is the least restrictive way to achieve the objectives. He said that in the current case, there’s no nexus with the entitlement. It is violative of this doctrine.

Justice Sikri referred to ‘Culture of justification’ in South Africa. A brief discussion followed.

Mr. Sibal resumed, saying that the very concept of Aadhaar is inconsistent with the doctrine of proportionality. He pointed out various provisions under Aadhaar Act which confer wide powers on the authority. He pointed out that as the State couldn’t stop the pilferage of food grains, it now has to be given personal data. How can it be trusted with the security of that data?

He read on from his own submissions that the purpose of Aadhaar Act was to provide for subsidies, benefits expenditure of whose was incurred from Consolidated Fund of India. Asks whether the whole expenditure has to be incurred from CFI or even the part? How is it to be interpreted? He said that it is one’s status from which the entitlements are to flow. He further stressed that are several entitlements which are available to non-residents. The state cannot deny benefits to anyone only for the want of a certain proof of identity. Most of the entitlements flow from part III of the Constitution. Denial of those entitlements for want of a particular proof of identification is denial of those fundamental rights.

Mr. Sibal asserted that this procedure doesn’t meet the test of either Article 14 or of Article 21.

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Mr. Sibal’s fifth submission – Constitutional Rights

He read out the following references for it.

  • Paragraph 150 of the Puttaswamy judgment in context of making people part with their biometrics for availing their entitlements: Mr. Sibal said that the right to livelihood is protected by the Constitution. Imposing a condition to exercise that right amounts to violating that fundamental right.
  • Judgment delivered by Justice Sutherland on imposing a restriction to enjoy constitutional rights.
    [Bench rose for lunch and reassembled for the second session at 2:30pm. Mr. Sibal continued]
  • Article 5 of the Constitution on citizenship: Mr. Sibal stated that in case a citizen doesn’t have Aadhaar, his rights to entitlements as a citizen will be abrogated. Mr. Sibal said that the moment you impose a condition, you’re denying a citizen of his rights. No defence can be taken from the State like “infrastructure is not in place”.
  • Section 14A in Citizenship Act regarding issue of national identity card: Mr. Divan said that it relates to a person’s citizenship. Nobody can object to it. Why do we need Aadhaar then? He acknowledged that identity has an umbilical cord status as a citizen, but asserted that primary identity is that of a citizen not an Aadhaar card holder. He said that the architecture of Aadhaar was defective, but even if it were not, he stressed that Aadhaar cannot be made mandatory.
  • Doctrine of unconstitutional conditions: This doctrine holds that the State cannot make a benefit or privilege conditional upon an individual giving up their rights. The doctrine of unconstitutional conditions was accepted in Indian law in 1974. He said that when you make essential benefits conditional upon giving up rights, you place individuals between “a rock and a whirlpool.”
  • Opinion of Justice Das in Re Kerala Education Bill (which also accepted the doctrine of unconstitutional conditions): “present members of society cannot surrender rights on behalf of future members of society, such as our children and grandchildren” – Mr. Sibal said that surrendering the rights of the future members like children cannot be accepted under the Constitution. He said that in case an individual refuses to make an Aadhaar, he will be denied entitlements. This itself is violative of Article 14 of the Constitution.

Mr. Sibal argued that a condition that precludes you from enjoying a benefit on the basis of an unreasonable classification is void. Justice Chandrachud says that if the government was to give you choice of two identities, can you refuse to give either. Justice Chandrachud asked if your entitlement depends on who you are, then can’t the government require proof on that count? Is it not a reasonable condition? KS says that proof still has to be linked to what entitles you to that benefit in the first place, which is your status.

J Chandrachud says that even if entitlement is beyond dispute, there has to be there has to be some proof of that status. Mr. Sibal said that he can have different ways of proving that fact. There are various ways of establishing identity. Mr. Sibal pointed out that Aadhaar doesn’t establish the status. He said that as long as he can prove his identity for the purpose of that entitlement by any method, he is entitled to the benefits.

Chief Justice of India said that KS’s submission is that you can’t be asked to barter or surrender one fundamental right in order to have access to another. Mr. Sibal agreed.

Justice Chandrachud said that a condition is unconstitutional if it requires you to relinquish a constitutional right -no statute can barter to give one fundamental right in return for other fundamental rights. He said that if the latter part is established, then nothing further was needed. He rephrased Mr. Sibal’s submission saying that giving just one option of proving identity is unconstitutional.

Justice Chandrachud further pointed out that this argument supposes that every person would have atleast one form of identity with him. He asked whether it would be correct to assume that. Mr. Sibal responded that in case an individual does not have an identity, the Govt. can provide a procedure to ensure the person has an identity. The Aadhaar Act which requires pre-existing identities in order to get an Aadhaar, apart from the introducer provision. Mr. Sibal said the point of Aadhaar is not to grant identity to those who don’t have it, but to authenticate identity. he accepted that a condition imposed on the basis of status is reasonable, but this is not one. He said that there can be a condition to prove his status, but on that, he has the right to prove it in a reasonable way.

Mr. Sibal quoted Julius Caesar. “Aadhaar is a colossus, and we are underlings.” Justice Chandrachud remarked, “your basic point is that a citizen must have a choice in deciding how to establish her identity.” Mr. Sibal responded “yes, through a reasonable manner prescribed by law.”

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Mr. Sibal then referred to multiple schemes including bonded labour scheme, national child labour scheme, national child labour project scheme, etc. which mandatorily require production of Aadhaar as examples of denial of fundamental rights.

  • Notification that makes Aadhaar compulsory for bonded labour rehabilitation schemes. He says “imagine the consequences.”
  • Notifications that make Aadhaar mandatory for child labour welfare schemes. Mr. Sibal said that many of these schemes are meant for the most marginalised, and it is they who will be excluded. “If this is not a denial of fundamental rights, then what is?”
  • Judgment in Minerva Mills v Union of India: The judgment emphasised the idea of “purity of means”, and said that you cannot achieve State goals by abrogating fundamental rights.

Mr. Sibal’s sixth submission – pilferage of food grains

Mr. Sibal said that this is not a constitutionally valid scheme. He pointed out exclusion of deserving persons and inclusion of non deserving persons.

  • Judgment of the Supreme Court in PUCL v Union of India: The judgment cited the Wadhwa Committee Report to establish the multiple issues with the PDS system. Mr. Sibal said that Aadhaar does not, as a matter of fact, stop pilferage or leakage.

Justice Sikri said that even if one reason for fraud is being taken care of through Aadhaar, then Aadhaar’s failure to take care of other kinds of fraud will not necessarily make it unconstitutional. Mr. Sibal agreed that it won’t, but it will raise questions about proportionality. He said their argument is that the scheme is disproportionate. He placed on record a compilation to repudiate all the factual claims made by the State.

Justice Sikri asked about many people having and misusing other IDs, such as multiple passports and suggested that maybe that’s a reason for Aadhaar, to prevent multiple IDs. Mr. Sibal responded that people also have multiple Aadhaar. Further, such people would be dealt as per law but some people breaking the law doesn’t justify the State making only one ID mandatory for all.

Justice SIkri said that this was again a question of proportionality. Mr. Sibal agreed.

Mr. Sibal summed up saying that this is the most important case since Independence and more important than ADM Jabalpur. ADM Jabalpur was a limited regime. Aadhaar is unlimited. Mr. Sibal said that this judgment will decide the course that this country takes. Will we live in a country where there is choice – or do we live in a country where the State is the arbiter of choice. Mr. Sibal urged the Bench to consider the gravity of this case when they decide.

Mr. Sibal concluded his arguments.

Senior Advocate Gopal Subramaniam’s arguments

Senior Advocate Gopal Subramaniam commenced his arguments on behalf of the petitioners.

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His fundamental submission was that despite the advances in technology, Constitutioncannot be obfuscated. He referred to the privacy judgment and said that at the core of the judgment was the idea of dignity. It recognized that there should be no interference with the most fundamental rights.

He said that privacy is a state of being. It can’t be described in a single word. The intrusion in that right has to be minimalistic.

He asserted that alternative methods to fulfill the purpose of giving benefits also exist that are consistent with the Constitution. He said that a crucial factor of dignity is that the most marginalised are not exposed as the most marginalised.

Justice Chandrachud said that social mobilization is based on the assertion of status. Mr. Subramaniam agreed completely and said that the question was whether Aadhaar interferes with status.

Mr. Subramaniam stated that it is important to ascertain the true purpose of this database. He said that the aim of the statute is not simply exclusion, but that it also treats data as property, and anticipates money-making on that data. Bringing the whole population into an aggregated database is a very serious issue. There is a state of exception where fundamental rights can be suspended – but short of that fundamental rights cannot be suspended or bypassed. The intrusion by the State has to be as minimalistic as possible. That is the soul of the Constitution.

Mr. Subramanian said the very concept of “identification” carried a pejorative sense. He would discuss the question of pre-existing forms of identity, before Aadhaar, and they were made. He says that Part IX of the Constitution is all about decentralisation. He said that the Aadhaar Act is a danger and attacks at the accountability of the State.

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Mr. Subramaniam argued that Aadhaar has the effect of disintermediating the State and erasing accountability.

Mr. Subramaniam stated that this is crucial for Article 14 of the Constitution. When you claim a violation of constitutional rights, it must be decided by a person, and not by a computer or an algorithm. He said that the soul of Aadhaar is “continuous authentication.” He said that this privileges the digital person over the real person.

Chief Justice summarized Mr. Subramaniam’s argument saying “Aadhaar makes a person an un-person.. Mr. Subramaniam agreed.

The Bench rose for the day. To continue on Thursday, 20th February, 2018. (was earlier announced 15th February, but the hearing on 15th got cancelled and moved to 20th)

Summary of hearing based on tweets by Gautam Bhatia and SFLC

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Written By

Vidyut is a commentator on socio-political issues with a keen interest in behavioral sciences, digital rights and security and manages to engage her various proficiencies to bring an unusual perspective to issues related with the intersection of tech and people.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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