Aadhaar Hearing: Day-1 (Summary) ‘Eminent Domain Does Not Extend To Human Body’, Argues Shyam Divan

The hearing on a string of writ petitions challenging the constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 commenced on Wednesday before the five-judge constitution bench of the Supreme Court.Given the critical significance of the matter in issue and the exhaustive nature of the hearing, Attorney General KK Venugopal advanced a suggestion to the bench, “In view of the hearing in the Ram Janambhoomi matter scheduled to commence from February 8, please allocate time slots to the many advocates in respect of all the writ petitions to make their respective submissions.”Backing the AG’s suggestion, senior counsel Shyam Divan, appearing on behalf of SG Vombatkere, one of the petitioners, said, “We have also distributed topics among ourselves to make submissions on.”Thereafter, Divan proceeded to give the bench a brief summary of the matters in issue: “The Aadhaar project, starting from January 28, 2009, is an ongoing project. Up till July 7, 2016, the project was carried on solely on the basis of a Central Government notification. It is this project which is under challenge. Then on July 7, 2016, the Aadhaar Act came into force which ratifies the project. The Act only covers some aspects of the project; even if the Act is struck down as unconstitutional, the Aadhaar project does not come to an end. Then there are the subordinate legislations; the rules and regulations framed under the Act of 2016. There are also collateral legislations, particularly the Money Laundering Amendment Rules of 2017. Finally, there are the 139 notifications issued by various ministries, departments and civil authorities under section 7 of the Act of 2016 as well as circulars issued under other parallel legislations.”By way of opening statement, Divan submitted that the Aadhaar project is one “without precedent” and has the potential to “hollow out the Constitution”, particularly the fundamental rights. Referring to the project as a “giant electronic mesh”, the senior counsel said that it shall turn the “citizen’s Constitution” into the “State’s Constitution”. Calling the project a “barter of biometric information for the purpose of authentication to be entitled to receive essential facilities”, Divan said that it gives the state “the switch to the civil death of an individual”.Thereupon, Divan proceeded to list the disputed issues - whether the Constitution sanctions a surveillance society; whether an individual’s personal autonomy extends to their biometrics; whether the prevailing Aadhaar framework complies with the mandate of the Rule of Law which requires statutory backing, exclusive government involvement and informed consent; whether the Act of 2016 could have been introduced as a money bill; the right of a citizen to personal identity; inclusion of minor children; whether individual autonomy extends to freedom of determining the extent of personal information to be put out; concerns of data protection.Expressing broadly the relief sought, the senior counsel submitted, “Our stand is that eminent domain does not extend to the human body”. He insisted on mandatory instructions that persons already enrolled under the project be allowed to opt out should the Act of 2016 be upheld, alternative ID proof may also be deemed acceptable; and that there be no electronic trail in respect of the biometrics disclosed.With a view to elaborate the legislative history of the Aadhaar project, Divan drew the attention of the bench to a chronology of events: the Central Government notification dated January 28, 2009, for the establishment of the UIDAI; the launch of the Aadhaar programme in rural Maharashtra in September 2010; introduction of the National Identification Authority of India (NIA) Bill, being on identical lines as the Aadhaar Act, in December 2010, and the concerns expressed in respect thereof by the Standing Committee on Finance; and the institution of PILs on the right to privacy in the Supreme Court, including one by (retd) Justice KS Puttaswamy in November 2012.He also drew the attention of the bench to the earlier interim orders passed by the apex court in connection with the Aadhaar controversy. On September 23, 2013, it was ruled that no person shall be made to suffer for not possessing a Unique Identification Number even if the same has been mandated by any government authority and that the Aadhaar card shall be issued only after due inspection so as to not issue the same to illegal immigrants. On March 24, 2014, in SLP (Crl.) 2524/2014, it has been reiterated that no one shall be deprived of any services or social schemes for the want of Aadhaar and all the government authorities had been directed to accordingly modify any circulars or notifications issued by them. The order dated September 23, 2013, was reaffirmed on March 16, 2015. Thereafter, on August 11, 2015, a 3-judge bench had held that the Union of India shall publicise, via both print and...

Aadhaar Hearing: Day-1 (Summary) ‘Eminent Domain Does Not Extend To Human Body’, Argues Shyam Divan

Mehal Jain

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