As the Aadhaar hearing resumed on Tuesday before the five-judges Constitutional bench of the Supreme Court, Senior Counsel Kapil Sibal, appearing on behalf of two petitioners, proceeded to compare the Biometric Database Law of Israel with the Aadhaar Act of 2016.
“The Israel law intends the ID cards to be voluntary, unlike the Aadhaar scheme. Further, the concept of consent in the former is not illusory as in the latter. Besides, the biometric data collected from the residents in Israel is mandated to be utilised only for the defined purpose for which it has been gathered and the access to the database is also permitted only in specific situations”, he submitted, adding, “There is also no collection of metadata in their regime”.
In connection with the provisions of the Aadhaar Act and the Regulations framed thereunder requiring the procurement of consent for Authentication of the individuals applying for Enrolment, he remarked at a later stage, “The ‘Subsidies, Benefits and Services’ and many other entitlements have been linked with Aadhaar. Does the requirement of consent even have any significance now?”
Continuing in the same thread, it was advanced that the identification as well as the Authentication records under the Aadhaar Act may be disclosed for the purpose of national security and that this provision may be misused.
“Information is power”, remarked Mr. Sibal, relying on the 2017 judgment in Justice K. S. Puttaswamy case wherein it was observed that “Ours is an age of information. Information is knowledge. The old adage that ‘knowledge is power’ has stark implications for the position of the individual where Part S data is ubiquitous, an all-encompassing presence”.
“‘Uber’, the world’s largest taxi company, owns no vehicles. ‘Facebook’, the world’s most popular media owner, creates no content. ‘Alibaba’, the most valuable retailer, has no inventory. And ‘Airbnb’, the world’s largest accommodation provider, owns no real estate. Something interesting is happening”- he quoted from the judgment.
Emphasising on the significance of information, he relied on the discussion in the Harvard Business Review on the acquisition by Facebook of the mobile application WhatsApp.
“However, these service providers possess information that is scattered”, referring to the portions of the judgment contemplating the threat posed by accumulation of information gathered under different heads to complete the profile of an individual- “...every transaction of an individual user and every site that she visits, leaves electronic tracks generally without her knowledge. These electronic tracks contain powerful means of information which provide knowledge of the sort of person that the user is and her interests. Individually, these information silos may seem inconsequential. In aggregation, they disclose the nature of the personality: food habits, language, health, hobbies, sexual preferences, friendships, ways of dress and political affiliation”.
“On the one hand, the scheme is intended to promote public interest, and on the other, confidential personal information is being made available in the public domain. How and where one is traveling is unconnected with public interest”, he advanced, citing the recent incident where a woman was compelled to give birth outside a hospital for the lack of Aadhaar card.
While agreeing that the State may implement a national ID regime, Mr. Sibal lamented the aggregation of sensitive biometric and demographic data in a centralised database and the mandate requiring Authentication for every transaction. “Accumulation of all information in One entity accords tremendous power of control to the entity”, he elaborated at a later point.
Referring to section 3 of the Aadhaar Act, he submitted that though the legislation intends Aadhaar to be free and voluntary, it has acquired a mandatory character.
Further, though section 32(3) restrains the UIDAI from collecting or maintaining any data as to the purpose of authentication, Regulation 26 of the Aadhaar (Authentication) Regulations of 2016 require the Authority to store metadata related to transactions.
Section 57 of the Act, permitting any body corporate or person besides the Central or any state government to require Aadhaar for any purpose pursuant to any law or even a contract to that effect, seeks to establish Aadhaar as the sole mode or proof of identification.
Thereupon, Mr. Sibal proceeded to argue that every enactment or policy decision has to clear the test of proportionality- “One, the aims and objectives for the attainment of which the statute or policy has been introduced have to be borne in mind, and two, it has to be judged if the said law is the least restrictive way of achieving said objectives. The Act of 2016 has accorded expansive powers to the state authorities. There is no rational nexus between the entitlements of ‘Subsidies, Benefits and Services’ and the Aadhaar scheme. It goes against the spirit of the doctrine of proportionality”, he submitted, adding, “The State that has been unable to curb the pilferage of food grains now has to be trusted with sensitive confidential information”.
In this regard, Justice A. K. Sikri mentioned the ‘culture of justification’, as it prevails in South Africa, requiring substantial justification as to the reasonableness and rationality of all State actions.
In view of section 23 of the Act empowering the UIDAI to call for information and records and conduct inspections, inquiries and audit of the operations of the Central Identities Data Repository, Registrars, enrolling agencies and other agencies, Mr. Sibal stated that the respondents be required to furnish the reports of the audits carried out.
In so far as the long title of the Act of 2016 describes it as “An Act 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...”, Mr. Sibal submitted, “It is not clear whether the expenditure is to be wholly incurred on the Consolidated Fund or even partially”.
“There are several entitlements that have been conferred on even non-residents. Can the State deny the same for the absence of the Aadhaar number? In addition, many of the entitlements mandatorily linked to Aadhaar have their origin in Part III of the Constitution. Restraining enjoyment thereof for the want of Aadhaar constitutes an infringement of the Fundamental Rights. One’s right to livelihood cannot be so curtailed. The Aadhaar project does not pass the tests of Article 14 and 21”, he submitted.