Aadhaar [Day-3 Session-2] The Entire Aadhaar Project Entails Invasiveness And Breaches: Shyam Divan

If the Act is upheld as being constitutional, by virtue of the electronic trail, profiling and authentication records, it will be possible to know where one is at any point of time throughout his life, argued DivanAs the Aadhaar hearing continued post the lunch hour, senior counsel Shyam Divan elaborated on the provisions of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016.In respect of the purpose with which the Aadhaar programme was envisaged, Divan referred to The Statement of Objects and Reasons of the Act- “The correct identification of targeted beneficiaries for delivery of various subsidies, benefits, services, grants, wages and other social benefits schemes which are funded from the Consolidated Fund of India has become a challenge for the Government ... In the absence of a credible system to authenticate identity of beneficiaries, it is difficult to ensure that the subsidies, benefits and services reach to intended beneficiaries”.Aadhaar [Day-3 Session-1] Aadhaar Law Must Be Tested By The Same Standards By Which A Law Which Violates Art. 21 Is Liable To Be Tested: Shyam Divan Finds Support From Privacy JudgmentEnumerating the specific objectives of the Aadhaar Bill, the senior counsel continued: “Issue of Aadhaar numbers to persons providing demographic and biometric data to the UIDAI; linkage of the Aadhaar number with the subsidies, benefits and services attached to the Consolidated Fund of India; authentication of the Aadhaar number; establishment of the UIDAI; updation of information in the Central Identities Data Repository (CIDR); and security and confidentiality of information.”Quoting the long title of the statute, he submitted that the Act is intended to “provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto”.Connecting the definitions of ‘bio-metric information’ and ‘core bio-metric information’ in clauses (g) and (j), respectively, Divan drew to the attention of the bench to the fact that both these definitions are not exhaustive but open ended, delegating the power to include more biological attributes, by framing regulations, to the prescribed list of photograph, iris scan and fingerprints.Reiterating his earlier argument as to how the ‘enrolling agency’ under the Aadhaar scheme could even be private entities and how 49,000 such entities had been blacklisted, Divan submitted, “Now the concept is defined under the statute. An enrolling agency may be appointed by the UIDAI or even the Registrar.”In context of the definition of ‘registrar’ in clause (s), the senior counsel remarked, “The enrolment is not being done by the UIDAI.”Authentication “Section 7 has been used by the government for introduction of the present statute as a Money Bill and also, to advance the ‘purpose’ argument in favour of the Act. But the Proviso appended here to clarifies that even alternative ID proofs shall be acceptable in the absence of the Aadhaar card,” contended the senior counsel.Continuing in the same thread, he stated, “The notion of alternative ID is also evident in section 8(3)”.In relation to section 9, providing that the Aadhaar card shall not be evidence of citizenship, domicile etc, Divan submitted, “But at the passport office, Aadhaar card is admitted as proof of address”. Unique Identification Authority of India (UIDAI)Moving on to the powers and functions of the UIDAI, as enumerated in Section 23, he emphasised on the overreaching powers of the Authority, “Clause (a) of subsection 2 empowers the Authority to specify by regulations the biometric and demographic data to be collected. If it so desires, it shall also be entitled to collect voice samples, DNA etc in addition to the stipulated biological attributes.Clause (c) requires the UIDAI to appoint an entity to operate the CIDR. These are advances technologies being developed by foreign contractors who may have access to the confidential data that was to remain proprietary to the Central government.Clause (g) confers upon the UIDAI the power to deactivate the Aadhaar number. The Authority has been given a switch by which all the civil rights of an individual could disappear.By virtue of the phrase ‘other purposes’ in clause (h), the UIDAI is entitled to mandate Aadhaar numbers for other than Subsidies, Benefits and Services”.Stressing the provisions of subsection (3) of section 23 permitting the UIDAI to enter into agreements with the Central or state governments or any Union Territory for performing any functions such as collection, storage or processing of data, and to appoint any registrars or other agencies in the same behalf, Divan commented, “So it is not only the UIDAI that is gathering,...

Aadhaar [Day-3 Session-2] The Entire Aadhaar Project Entails Invasiveness And Breaches: Shyam Divan

Mehal Jain

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