Supreme Court of India to pronounce the Judgment in the petitions challenging the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other. Subsidies, Benefits and Services) Act, 2016 Tomorrow
The Constitution Bench reserved the order on May 10 after 38 days long hearing in the petitions challenging the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other. Subsidies, Benefits and Services) Act, 2016.
Bringing to a conclusion that which, in the words of Attorney General K. K. Venugopal, was the longest hearing in the history of the apex court, second only to that in the landmark Kesavananda Bharti case, the Supreme Court had on May 10 reserved its judgment on the string of writ petitions, pending since 2012, challenging the constitutionality of the Aadhaar project.
In a marathon hearing spanning over 38 days, submissions for and against the project, which seeks to establish a database of personal identity of every Indian resident, by assimilating their demographic and biometric information, were advanced before The five-judge bench, comprising Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D. Y. Chandrachud and Ashok Bhushan.
While Senior Counsel Shyam Diwan, Gopal Subramanium, Kapil Sibal, K. V. Vishwanathan, Meenakshi Arora, Sajan Poovayya, Arvind Datar, P. Chidambaram, Anand Grover, C. U. Singh, P. V. Surendranath and Sanjay Hegde appeared on behalf of the petitioners, the respondents, being the Union of India, the states and the UIDAI, and the intervenors were represented by the AG, ASG Tushar Mehta, Senior Advocates Rakesh Dwivedi, Neeraj Kishan Kaul and Jayant Bhushan, Advocates Gopal Sankaranarayanan and Zoheb Hossain.
The sequence of events leading the challenge, stemming from the alleged violation of the right to privacy, before the five-judge constitution bench are as follows-
On September 23, 2013, a bench of two judges had directed that no person 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 Aadhar card 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 had been reiterated that no one shall be deprived of any services or social schemes for the want of Aadhar and all government authorities had been directed to accordingly modify any circulars or notifications issued by them.
The order dated September 23, 2013 had been reaffirmed on March 16, 2015 by a three-judge bench.
Thereafter, on August 11, 2015, the same 3 judge bench had held that the Union of India shall publicise via both print and electronic media that Aadhar is not mandatory for any social security schemes other than Public Distribution System scheme and the LPG Distribution scheme. Further, with a view “to give a quietus to the kind of controversy raised in this batch of cases once for all”, it was deemed necessary “that the ratio decidendi of M.P. Sharma (1954) and Kharak Singh (1962) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength”.
Subsequently, on October 15, 2015, a 5 judge bench of the top court had added the MGNREGA scheme, the National Security Assistance Programme, the PM Jan Dhan Yogana and Employees’ Provident Fund Scheme to the earlier list of two schemes.
Also, it was held that the order dated September 23, 2013, shall continue to be in force and Aadhar shall be purely voluntary till such time the matter is finally decided by the Court one way or the other.
Finally, on July 18, 2017, the five-judge bench noted “that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P. Sharma by an eight-Judge Constitution Bench and also, in Kharak Singh by a six-judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position. Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nine-Judge Constitution Bench...”
By virtue of the verdict pronounced on August 24, 2017 in Justice K. S. Puttaswamy [(2017) 10 SCALE 1], the nine judges of the apex court had unanimously read the right to privacy into the right to life and personal liberty under Article 21.
In the meantime, Aadhaar-based E-KYC for new as well as existing mobile phone connections was canvassed in the February 6, 2017 order in Lokniti Foundation, and on June 9, 2017, the mandate of Aadhaar-PAN linkage under section 139AA of the Income Tax Act of 1961 was upheld in Binoy Viswam.
Here are the excerpts from the 38 days of the final hearing, as it transpired between January 17 and May 10-
Mr. Divan had enumerated 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.
Mr. Diwan elaborated on the Organisational Hierarchy under the Aadhaar project- the biometric data of the residents applying for enrolment passing through the enrolling agencies, which may be private players, to the registrars and the Registrar General of India, and finally, to the UIDAI. He attempted to drive in how the integrity of the entire process is compromised.
The Senior Counsel drew the attention of the bench to the various portions of the 2017 Right to Privacy judgment and the provisions of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016.
The constitutionality of retrospective validation under section 59 of the Aadhaar Act, of its section 57 empowering private entities to require the Aadhaar and of a surveillance state was discussed.
He pointed out that the UIDAI supported the setting up of State Resident Data Hubs (SRDHs), which have the record of names of persons who enrolled, their location, and their Aadhaar numbers. He contended that when the SRDHs collate data, it enables religious, caste-based and community profiling, and potential targeting of individuals, and a pervasive loss of privacy.
Mr. Diwan countered the Centre’s claims of fiscal savings, plugging of leakages in the dispensation under welfare schemes and lack of means of identification as being false or exaggerated.
Mr. Sibal, commencing his arguments, had remarked, “The Aadhaar Act is for the citizen what the Right to Information Act is for the government”.
He submitted that Section 8(3)(c) of the Aadhaar Act of 2016, which speaks of ‘alternatives to submission of identity information to the requesting entity’, has been wrongly drafted as the definition of ‘authentication’ in section 2(c) of the Act leaves no room for any alternatives.
“How many parts of the country do not have electricity and wifi? How many places are there where machines have not reached and where they do not work? How can the Aadhaar scheme be implemented in a country like India?”, he inquired rhetorically.
“This is the most important case since the independence. This assumes even more significance than the ADM Jabalpur matter in view of the all-encompassing character of the Aadhaar project. ADM Jabalpur was a case related to only the emergency. It was for a limited period of time. The issues , in this case,are relevant for an unlimited period. The decision in this case is going to decide the future of the country. This case will decide whether an individual is entitled to free choice india”, concluded Mr. Sibal.
“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,” submitted Mr. Gopal Subramanium.
“If an action was undertaken without lawful authority, it cannot be accorded the requisite authority retrospectively. The de jure and de facto invasion into the sphere of rights is complete; it cannot be retrospectively cured after the enactment of a law”, he continued, in context of section 59 of the Act of 2016.
He prayed that the bench consider granting compensation to citizens who have suffered on the ground of exclusion, particularly in the instances of starvation deaths.
Mr. Datar advanced submissions in the light of Rule 9 of the PMLA (Prevention of Money Laundering Act, 2002) Rules, as they stand after the 2017 amendment, requiring the linkage of existing bank accounts with the Aadhaar number and mandating the procurement of the number for opening new bank accounts.
He contended that introduction of the Aadhaar Act as a Money Bill as a Money Bill was unconstitutional and that it could have, at the most, been treated as a Finance Bill which required the approval of the Rajya Sabha.
Mr. Chidambaram argued that Article 110(3), in so far as it provides that the decision of the Speaker of the Lok Sabha as to whether a Bill is a ‘Money Bill’ shall be final, does not exclude the scope of judicial review.
Further, The five-judge Constitution bench of the Supreme Court had extended the deadline for mandatory linkage of the Aadhaar number with bank accounts, mobile numbers and other services till the final disposal of the petitions, clarifying that the extension shall not be applicable to the ‘subsidies, benefits and services’ under Section 7 of the Act.
Referring to the recent judgment of the Supreme Court on passive euthanasia and living wills, Mr. Viswanathan submitted that subjecting human beings to probabilistic biometric authentication was no different from experiments on guinea pigs and hence, is violative of the right to dignity.
Mr. Grover threw light on the risks of Sharing of sensitive biometric and demographic data with the State Resident Data Hubs (SRDH), where the information is not as secure as in the CIDR and cannot even be destroyed by mere deletion. He argued That the foreign Biometric Service Providers (BSP), by virtue of the contract with the UIDAI “may have access to personal data of the purchaser (UID), and/or a third party or any resident of India”.
Ms. Arora discussed the impact of surveillance, the parameters of strict necessity and purpose limitation, and the test of proportionality.Mr. Singh emphasised on the violation of the rights of children on account of the Aadhaar scheme.
Mr. Poovayya urged the bench to consider the principles of the EU General Data Protection Regulation (GDPR) in determining the need for a less-invasive option in view of the absence of any concrete mechanism for data protection in India.
Mr. Surendranath, attempting to depict the unreliability of fingerprints, cited the 2004 instance where the FBI had arrested Portland-based lawyer Brandon Mayfield in the Madrid train bombings.
Mr. Hegde advanced his submissions in the light of the freedom of conscience, which he differentiates from the freedom of religion, in Article 25.
The petitioners, finally, concluded their case.
“Between 2006 and 2016, 61 committees including Empowered Groups of Ministers and expert groups have deliberated on alternatives to Aadhaar cards such as smart cards etc…the Aadhaar is a serious attempt on the part of the government for insulating people...several countries have adopted similar systems of identification…the World Bank has, in its ‘Identifications for Development’ Integration Approach Study, investigated the various aspects of the Aadhaar regime as well those of other countries…”, the AG had submitted.
He had drawn the attention of the bench to the UIDAI circular dated November 15, 2017 on the ‘Applicability of Aadhaar as an Identity Document for NRIs/ PIOs and OCIs’, relying on sections 2(b) and 3 of the Aadhaar Act to indicate that the project is applicable only to ‘residents’.
Days 21 and 22
UIDAI CEO Dr. Ajay Bhushan Pandey delivered a PowerPoint presentation on the concerns of data security, authentication failure, exclusion, manipulation and surveillance as being the various technical aspects of the Aadhaar scheme.
AG K. K. Venugopal discussed the responses to the queries posed by the petitioners in context of the presentation, in respect of inter alia the rate of authentication failure, biometric exceptions and deduplication rejections.
The AG had reiterated that the Aadhaar project is a policy decision adopted by the Executive at the topmost level and prayed that its constitutional validity may not be questioned, relying on the judgment in Narmada Bachao Andolan v. UOI [(2000) 10 SCC 664] to buttress his argument.
In context of the proportionality of the mandatory Aadhaar linkage with mobile phones to curb terrorism, Justice Sikri had remarked, “Does it pass the test of proportionality to treat every citizen as a terrorist?”. Justice Chandrachud had also inquired rhetorically, “rhetorically, “Which terrorist applies for a SIM card?”
ASG Tushar Mehta justified the mandate of Aadhaar-PAN linkage under Section 139AA of the Income Tax Act, in the light of the tests prescribed in the 2017 Justice KS Puttaswamy judgment which any state action seeking to curtail the right to privacy must clear- test of statutory backing; of legitimate state aim; and of proportionality.
The ASG, addressing the concern regarding the infringement of the right to privacy, had remarked, “Your right to move your fist stops where my nose begins…to stop you from moving your fist at all would not be reasonable…at what distance from my nose your fist shall stop is the discretion of the legislature”.
When the ASG had sought to submit that the blocking of bank account for the want of Aadhaar is not permanent, Chief Justice Misra had remarked that the freezing of a bank account may constitute a violation of the right under Article 300A.
In response to the ASG’s contention that the requirement of Aadhaar arises merely once at the time of opening a new bank account or linking with the UID number an existing account, Justice Chandrachud had noted that under Rule 9(1)(b), Prevention of Money Laundering (Maintenance of Records) Rules,international money transfer operations and transactions of Rs. 50,000 or more demand verification of identity.
When Mr. Dwivedi had to sought to contend that the apprehension of misuse of sensitive personal data lay in the realm of illusion, Justice Chandrachud had asserted, “it is real…there is a possibility of abuse of such information, say, to manipulate elections”, indicating the recent ‘Cambridge Analytica’ incident.
The discussion centred on the three alternatives to Aadhaar in Section 7 for securing access to ‘Subsidies, Benefits and Services’- furnishing proof of possession of Aadhaar number; proof of application for enrolment; or other viable means of identification.
Mr. Dwivedi addressed concerns regarding the conflict between the Fundamental Right to privacy, which the Aadhaar project is contended as being violative of, and other social and economic welfare rights such as the rights to food and shelter.
He reiterated that there is no reasonable expectation of privacy in respect of the demographic information and the facial photographs collected under the Aadhaar scheme.
Justice Chandrachud remarked that the Aadhaar-based e-KYC process had not been ordered by the apex court in Lokniti Foundation v UOI, while the DoT circular cites the aforesaid observation of the court, stating that “this amounts to a direction”.
“...All we want to say is that if there is a powerful tool of identification, the private sector must be allowed to use it…the information that is sought under e-KYC is collectible even without Aadhaar. The problem is unauthorised sharing, which is a concern even outside the scope of Aadhaar…there is no reason to strike down Section 57…,” explained Mr. Kaul.
When the bench noted that for the purpose of Article 110(1), a Bill shall be deemed to be a Money Bill if it contains ‘only’ provisions dealing with all or any of matters enumerated in its sub-clauses (a) to (g), the AG sought to submit that the clause (1) of the Article intends the matters mentioned in its sub-clauses to ‘only’ be contained in a Money Bill.
Justice Chandrachud remarked that such a connotation would amount to rewriting the Constitution.
“The Aadhaar was made optional as per the interim order passed in Lokniti (it may be noted that the Supreme Court had a week earlier denied mandating the Aadhaar-SIM card linkage), but it will only remain optional till the final disposal of the matter,” stated the AG.
As Mr. Diwan commenced rejoinder submissions, Justice Chandrachud noted “The march towards technology is inexorable. No court or government can stop it”, adding, “the human rights perspective is not only about privacy, but also about securing benefits to the segment of society that could not access them earlier”.
Day 37 and 38
When Justice Chandrachud inquired about the course of action in respect of data collected prior to the coming into force of the Aadhaar Act, Mr. Diwan responded, “the database must go because of the need to assert the rule of law... Court orders, as well as the Parliamentary authority, have both been violated by the Government in this case...Most people had been coerced into enrolment...”
In respect of the Aadhaar Act having been introduced as a Money Bill, he had submitted, “Money Bill is not only a textual concept under Article 110...several defences of the Part III Rights are present in the Constitution and the Supreme Court is the final citadel...Here, in overlooking the power to review of the Rajya Sabha and the power to return of the President, two defences have been denied...”. Justices Chandrachud and Sikri had appreciated the said argument.
When Justice Chandrachud asked about the parameters that govern the decision to issue a notification under section 7 of the Aadhaar Act, Mr. Subramanium submitted that considering the notifications are as many as 144, there is no examination of proportionality or legitimate state interest prior to issuing one to impose a condition on a Fundamental Right.
Mr. Datar repeated that the Aadhaar Act could at best be a Financial Bill, suggesting that the judgments in Mohd. Saeed Siddiqui v. State of UP (2014) and in Yogendra Kumar Jaiswal (2015) may be overruled.
Mr. Chidambaram contended that The exclusion of the role of the Rajya Sabha and the President, as envisaged under Article 111, cannot ameliorated be applying the doctrine of severability.
With Mr. Vishwanathan, Mr. Grover and Mr. Surendranath concluding their rejoinder arguments, the judgment was reserved.