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Constitutional Validity of Aadhaar, Day 9

This is a record of the proceedings in the Supreme Court bench hearings 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.

Senior Advocate Kapil Sibal continued presenting the case, sharing a news report about people being denied pensions in old age homes across the country because of Aadhaar failures. “This is the reality of India.”

Justice Sikri said that the government has claimed that 1.2 billion people have enrolled, meant that only ten crores are left. He asked if there are so many problems, how have so many people been enrolled. Mr. Sibal said that there’s a difference between getting enrolled and having to authenticate each time.

Justice Bhushan said that these kinds of problems may not be a ground for holding a statute unconstitutional. Kapil Sibal replied that the point is exclusion.

Justice Chandrachud suggested that exclusion may be because of infrastructure problems or it might be irremediable, like because of old age. He said that on the first point, the government may upgrade.

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Mr. Sibal said that the question was that if the government was going to upgrade, what was to happen in the meantime. Additional Solicitor General Tushar Mehta claimed that nobody has been excluded because of lack of Aadhaar. (!)

The Court asked him to explain his claim. Senior Advocate Rakesh Dwivedi said that according to Section 7 of the Aadhaar Act, if there is a problem with authentication, you can just show the card and the number. He claimed that circulars have been issued saying that if there is authentication failure, nobody should be denied. He also pointed to Sections 4 and 31, and said that if biometric information changes, the Aadhaar holder can ask the UIDAI to update the information.

Mr. Dwivedi pointed to the regulations that say that an exception will be made for residents who are unable to provide biometric information. He claimed that the law does not permit any exclusion either at the enrolment stage or at the authentication stage. ASG Mehta read out a cabinet release that says that provisions have been made to handle exceptions. He claimed that arrangements have been made in all blocks and talukas to have alternatives available for exceptional cases.

Justice Chandrachud remarked that this actually indicates a countrywide problem and that until mechanisms are placed, nobody should be excluded. ASG Mehta repeated that these mechanisms are already in place. He said that 96% of the people are already enrolled. Justice Sikri said that many people may not be knowing that there is a provision that you can update your data. ASG Mehta said that they have taken care of all that. He said that Aadhaar is citizen-friendly and all problems have been taken care of. He repeated that nobody is being excluded for lack of Aadhaar.

Mr. Sibal resumed, saying that there are serious problems on the ground, that couldn’t be answered by simply by reading out the provisions. He said that the Court is meant to protect precisely those people. Attorney General KK Venugopal said that if biometrics and iris scans fail, you are entitled to produce any alternative ID. He said that there is no question of exclusion.

Justice Chandrachud asked whether the Act provides for situations where authentication fails. Rakesh Dwivedi Said Section 7 allows for that. Mr. Sibal disagreed.

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Mr. Sibal resumed his argument with Section 4(3) of the Aadhaar Act. Justice Chandrachud said that Section 7 contemplates three possibilities – authentication, proof of enrolment, and proof of application, while Section 4(3) only applies to the first situation. Justice Sikri said that under Section 7, proof being furnished of having an Aadhaar will be sufficient. To this, Mr. Sibal responded that on that interpretation, people will refuse to authenticate.

Justice Sikri suggested an interpretation: if authentication fails, then you can show proof of enrolment. Mr. Sibal said that that would amount to adding the word “or” in the section.

Justice Chandrachud said that the Act could be interpreted in a way so as to ensure that there is no exclusion. He said that authentication is at the heart of the statute.

Mr. Sibal then came to Regulation 26, which talks about Registrars adhering to all regulations. He pointed out that the only consequence for breach is a fine, which came in 2016. To this, Justice Sikri joked that perhaps Mr. Sibal should not make this argument. General laughter. (Mr. Sibal was part of the previous UPA2 government that created the UIDAI and started the Aadhaar Scheme)

Mr. Sibal discussed the UK biometric identity project, which was scrapped in 2010. The UK Act provided for a national identity register. A regulatory impact assessment claimed that the UK bill would achieve less illegal migration, enhance the ability to fight terrorism, and prevent identity fraud for welfare. He says that these are the exact arguments that the government is making today. The UK govt insisted that the bill was to ensure that everyone had one ID, and that it would not erode Civil liberties. The opposition Conservative party opposed it on the ground that it was fundamentally changing the relationship between individual and State. The Conservative Party argued that a central database of information was perilous to civil liberties.

Mr. Sibal Read out the objections of David Davis MP, and various proposals to ensure the security of data and individual consent. He read out the UK bill introduced to repeal the act, which stated that the national identity card represents the worst of government, it is intrusive and bullying, and does not achieve its objectives. “Government is a servant of the people, not the master.” This was stated by Theresa May, then home secretary and now Prime Minister. Mr. Sibal said that this is a recognition of the pitfalls.

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Mr. Sibal distinguished between social security cards and Aadhaar, saying that he could understand it if you had smart cards and if biometrics were stored on the card itself. He said that Aadhaar is “identity+”. Justice Chandrachud enquired as to the “plus”. Mr. Sibal said that it was metadata. Justice Chandrachud asked if there was anything else. To this, Mr. Sibal responded, “that’s it, and that’s serious.”

Mr. Sibal said Sections 3, 4, 8 and 57 of the Aadhaar Act are at the heart of the statute. Under 57, you can extend Aadhaar to all other non-welfare services. Section 7 is not key to the Act. If it was not there, the government could have used Section 57 and achieved the same goal by amending the Food Security Act. Section 7 authorises the government to say that Aadhaar can be the only way to get subsidies. “My entitlements should depend on my status, not on my identity. I might be a pensioner with a pension card issued by the government, but the government can still deny me.”

Mr. Sibal stated that all proofs of identity, which are otherwise acceptable, are excluded by the Act. Justice Sikri observed that those alternative forms are acceptable even at the time of enrolment. Mr. Sibal agreed that they were acceptable for enrolment, but not for identification. He questioned the basis for this.

Mr. Sibal questioned why anyone should know where and when he opened a bank account. The only claimed ground is national security, but there’s no link between Aadhaar and that.

Justice Chandrachud said that the Constitution itself postulates multiple identities. Gender, status, religion. He says that the Aadhaar Act doesn’t speak of identity in that sense and asked whether the constitutional sense of a plurality of identities is relevant to identity in the sense that Aadhaar envisions identity.

Mr. Sibal said that the link is that the Constitution allows me to prove my identity in a way that Aadhaar prohibits me. He said that Article 21 of the Constitution guarantees choice, but Aadhaar takes it away.

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Justice Chandrachud asked whether the state could argue that Aadhaar only asks you to prove your person, not your identity. Mr. Sibal asserted that there should be a choice in exactly that.

Mr. Sibal described the biometric smart cards used in Israel. Israeli law allows biometric identification and authentication, and the existence of a database. The database doesn’t include identifying information. He explained that the smart ID card allows users to identify themselves for services and benefits if they wish to do so. He pointed out that the last bit (“if they wish to do so”) shows the voluntary character.

Mr. Sibal summarized his point saying that yes, we could have an ID card, but authentication should be optional, data should be on the card, there should be no database, and that every citizen should have the right to alternatives. Mr. Sibal said that he would conclude his arguments on Tuesday.

To continue on Tuesday, February 13, 2018. (There is no second session as the court was hearing the Ayodhya case in the afternoon.)

Summary of hearing based on tweets by Gautam Bhatia and Prasanna S

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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.

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