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Constitutional Validity of Aadhaar, Day 23 – “Aadhaar itself cannot be struck down”

This is a record of the proceedings in the Supreme Court bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the previous days’ proceedings here: Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9, Day 10, Day 11, Day 12, Day 13Day 14Day 15Day 16., Day 17Day 18, Day 19, Day 20, Day 21 and Day 22.

The AG read out the list of 20 questions asked by the petitioners and the responses to them. We are embedding the original document here rather than relying on quotes from live reporting and reporting only discussion about the answers below the document.

[embeddoc url=”http://staging.medianama.com/wp-content/uploads/CEO-Responses-To-Questions-Batch-I.pdf” download=”all”]

About the fourth response regarding parental consent for children, Justices Khanwilkar and Sikri said that they don’t know if the measures are being implemented on ground. Justice Chandrachud said that it may not be for Dr. Pandey, but for the government to satisfy the Bench on the implementation as it is experienced in the field.

The AG rounded up the responses saying Aadhaar is an evolving technology. And all other alternatives were considered for a period of ten years. He says the act can always be amended and rectified.

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The AG reiterated that the Aadhaar project is one of a kind and has been praised all over the world.

The AG then read from the 2013 Registrar Handbook which has a section of offline vs online authentication and superiority of Aadhaar over something like smart cards.

The AG argued that Aadhaar is a policy decision taken at the highest level of the Government, therefore courts should not interfere to determine its validity – Aadhaar itself cannot be struck down on that ground. It is now here to stay for all times to come.

The AG then explained his justification for the violation of privacy under the Puttaswamy standards. He said Aadhaar passes both the Chandrachud and SK Kaul tests. He laid down the three conditions under which privacy can be invaded. 1. There should be a legislation. 2. Legitimate state aim. 3. Proportionality. AG says Aadhaar satisfies all three.

The AG insisted that there is a reasonable nexus between the means adopted and the object sought to be achieved. He said that the law cannot be adjudged to be invalid merely on the ground that its implementation is unlawful. He said that there was as minimum an invasion as possible, of privacy under the Aadhaar project. For the objectives of the Act, the mechanism of the Act is the least invasive alternative. He claimed that they couldn’t have formulated a law so that there could be a lesser invasion of privacy.

The AG said that an enormous exercise involving a huge outlay of funds cannot be struck down all as waste for a few petitioners complaining.

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The AG then read from Puttaswamy, 9-judge bench judgment, Part R and S of Justice Chandrachud’s judgment.

The Bench rose for lunch, reassembled at 2:30 pm.

The AG continued reading Justice Chandrachud’s plurality opinion in the right to privacy judgment. He read out the part of Justice Chandrachud’s judgment that refers to the Srikrishna Committee report on data privacy. The AG said that whatever more has to be done on data protection will be done by the Committee. He said that the UIDAI CEO is on the committee.

The AG said that the Srikrishna Committee Report will be ready by May 15. He stated that in the privacy judgment, other opinions, such as those of Justices Chelameswar and Bobde, have recognised that privacy is not absolute, and there is legitimate state interest that can override it.

The AG said that the “just, fair and reasonable” standard will apply to adjudicate the validity of laws that are claimed to infringe privacy and that the state can always enforce reasonable restrictions to protect legitimate state interests.

The AG read out Justice Nariman’s opinion from the privacy judgment, which stated that whichever article is applicable in a particular case of privacy, the corresponding restrictions will apply, and ultimately the Court must undertake a balancing exercise. He cited the Right to Information Act as a reasonable restriction on privacy in the larger public interest. (MediaNama: This continues the ongoing perversion of the distinction between accountability and privacy – people in public roles and organizations cannot claim individual privacy on actions for which they are accountable to the country!)

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The AG read out various passages from Justice Kaul’s judgment in the privacy case that lays out the proportionality standard for adjudicating infringements on privacy. He said that privacy is nowhere described except in the dictionary. The court has to look at each individual case. He read out the exceptions to privacy such as national security, investigation of criminal offences.

The AG said that this is the totality of the judgment, and he proceeded to apply it to the Aadhaar Act. He said that the right to privacy judgment says that privacy is a fundamental right under Article 21, and therefore subject to the limitations of the same article. The lead judgment of Chandrachud J says that existence of the law, legitimate state interest, and proportionality, are the tests.

Applying the Puttaswamy judgment to Aadhaar, the AG argued that the judges have agreed that privacy is not absolute. Justice Chandrachud laid down the three conditions to be applied for the invasion of privacy. He said Aadhaar fulfils all three conditions to be applied to judging a privacy violation: The test of proportionality is to be applied. So the petitioners have to establish that the tests have not been satisfied.

The AG reiterated that the invasion of privacy is minimal in Aadhaar, therefore it passes the just, fair and reasonable test. He claimed that the Aadhaar Act meets the standards and has adequate safeguards. He said that the Aadhaar Act is a just, fair, and reasonable law and that it is in pursuance of a larger public interest, including preventing dissipation of social welfare benefits, prevention of black Money and money laundering, prevent income tax fraud, and lastly, prevent terrorism by linking with SIM cards.

The AG asserted that curbing black money, providing subsidies, benefits and services are legitimate state interests of the State. He said that the SC cannot second guess the value judgment of the legislature. These are all legitimate State interests.

The AG claimed that the Aadhaar Act satisfies the test of proportionality by showing a rational nexus between the means and the goal. He said that all the subsidies under Section 7 are part of the right to a life with dignity, and will prevail over the right to privacy.

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The AG claimed that when people applied for Aadhaar before the Act, they knew it was voluntary, so there’s no question of violation of rights. He made the argument that right to live a life of dignity trumps right to privacy. He said that Aadhaar in it’s initially stages was voluntary, therefore no one was coerced to enrol.

The AG claimed that before the privacy judgment, there was no question of the government or the people knowing that there was a right to privacy. (MediaNama: !!!!!!)

Justice Bhushan objected to this.

Justice Chandrachud also objected to this.

The AG reiterated that before the privacy judgment, the government could not proceed on the assumption that there existed a fundamental right to privacy. (MediaNama: But is this not exactly what the government claimed to have done?)

Justice Chandrachud reminded that the right to privacy judgment declared that all judgments for forty years that had upheld the right to privacy were correct. The AG said that those judgments were per incuriam because there were larger benches that had held there was no right.

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The Chief Justice of India disagreed with this argument.

Shyam Divan handed over three more questions for UIDAI CEO, based on the day’s answers.

The Court rose for the day. The Advocate General will continue submissions on behalf of the government at 11:30am on the 4th April 2018.

Summary of hearing based on tweets by Prasanna S, 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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