Aadhaar Hearing [Day-11]: Aadhaar Act Lacks Legitimacy As It Validates Breach Of Fundamental Rights: Gopal Subramanium

As the hearing in the string of writ petitions challenging the constitutionality of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016 resumed before the five-judge constitutional bench of the Supreme Court, senior counsel Gopal Subramanium continued his submissions on Tuesday.Reading the 2017 judgment in Justice KS Puttaswamy, upholding the right to privacy as a fundamental right, with the judgments in NALSA v. UOI (2014), wherein the right of transgenders was read into Articles 15 and 21, and Subramanian Swamy v. UOI (2016), where it was observed that the right to life in Article 21 includes the right to reputation, Subramanium advanced, “Article 21 encompasses the concept of dignity. The Aadhaar project is accordingly unconstitutional”.“It is a settled position that in case of a conflict between individual rights and state interests, the former are given priority over the latter. In addition to the principle of non-discrimination in Article 14, it is necessary that each state action passes the test of due process, substantively as well as procedurally. The Aadhaar Act lacks legitimacy in its object in so far as it validates breach of fundamental rights retrospectively. It is also characterised by excessive delegation. For an aim to be legitimate, it is necessary that the means adopted also be legitimate. The means resorted by the Act of 2016, being biometrics and algorithm, itself is unsatisfactory,” he continued.Referring to the Theory of Potential Harm, it was advanced that the Act fails to survive the examination in context of the theory.Citing the 2017 Supreme Court judgment in Binoy Viswam, regarding linking of Aadhaar number with PAN card under Section 139AA of the Income Tax Act of 1961, he pointed out the observations regarding social benefit and application to Services offered by private entities.Responding to the question posed by Chief Justice Dipak Misra at the previous hearing as to whether the Aadhaar scheme accords primacy to the virtual individual over and above the ‘flesh-and-blood’ individual, Subramanium cited the excessive dependence on digital means, without assigning answerability to any real person, and the lack of access to justice.Tracing the trends of reasonableness through the Supreme Court judgments in Re Delhi Laws Act (1951), State of West Bengal v. Anwar Ali Sarkar (1952), Rustom Cavasji Cooper v. UOI (1970), Maneka Gandhi v. UOI ( 1978 ) and Kesavananda Bharti (1973), he submitted that the Act is unconstitutional.At a subsequent stage, Justice AK Sikri remarked that Subramanium’s arguments regarding the Aadhaar project being violative of reasonableness as contemplated in Article 14 are his own improvisation.Responding to Justice DY Chandrachud’s remark at the previous hearing that status is a prerequisite for social mobilisation, Subramanium advanced, “The Aadhaar scheme, in fact, impedes mobilisation and perpetrates intrusion...in addition to civil death, it confers the power to result in the constitutional death of a citizen.”Referring to the omnipresent characteristic of the project, he submitted that it hinders self-realisation of an individual. Further, indicating the probabilistic nature of biometrics, he stated that rights and entitlements conferred under the Constitution cannot be left to chance and at the mercy of an algorithm the UIDAI cannot control.“The project envisages the procurement of an Aadhaar card to even be issued a birth certificate. The State is treating its citizens like a flock of sheep,” he remarked.Thereupon, he relied on the Justice KS Puttaswamy judgment, in so far as it deals with District Registrar & Collector, Hyderabad v Canara Bank [AIR 2005 SC 186]. In the 2005 judgment, the apex court had observed, “ ... if the right (to privacy) is to be held to be not attached to the person, then ‘we would not shield our account balances, income figures and personal telephone and address books from the public eye, but might instead go about with the information written on our foreheads or our bumper stickers’.”He continued to refer to Justice Chandrachud’s judgment in the Justice KS Puttaswamy case: “Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality”.In the spirit of the argument that Aadhaar perpetrates exclusion from social security schemes, he advanced, “Exclusion implies discrimination which is unconstitutional”, adding that the Indian Constitution harmonises Joseph Raz's concept of exclusionary reasons and the idea that individuals can have rights against the state which precede an explicit legislation as propounded by Ronald Dworkin.Questioning the feasibility of the provisions regarding counselling and procurement of informed consent in the...

Aadhaar Hearing [Day-11]: Aadhaar Act Lacks Legitimacy As It Validates Breach Of Fundamental Rights: Gopal Subramanium

Mehal Jain

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