Aadhaar [Day-29] There Is A Possibility Of Abuse Of Aadhaar Data To Manipulate Elections: Justice Chandrachud

On Day 29 of the Aadhaar final hearing, resuming his submissions, Senior Counsel Rakesh Dwivedi urged before the Supreme Court five-judge bench that under section 8 of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016, the biometric and demographic information of an individual is used only for authentication.Referring to sections 8(3) and 29(3) of the Act of 2016, Justice D. Y. Chandrachud voiced the concern regarding the purpose of authentication being knowable to ‘requesting entities’ and the misuse of such data- “The information that so many authentication requests have been received from an individual from a hospital could be valuable for insurance and pharmaceutical companies...” “The Aadhaar scheme ensures better data security than the General Data Protection Regulation (GDPR) of the EU...but a cent percent assurance cannot be guaranteed in respect of anything; the test should be of ‘reasonable protection’...however, Your Lordships may narrow down sections 8(3) and 29(3) with the specification that any details as to the purpose of authentication shall not be collected...”, responded Mr. Dwivedi. “These provisions may even be excluded from the Act...”, noted Justice Chandrachud.When Justice A. K. Sikri reiterated doubts regarding the threat of abuse of sensitive personal information, Mr. Dwivedi asserted that the apprehensions are not real.“it is real...there is a possibility of abuse of such information, say, to manipulate elections...”, remarked Justice Chandrachud.When Mr. Dwivedi responded the Aadhaar scheme may not be compared with the recent ‘cambridge analytica’ incident, Justice Chandrachud noted that Aadhaar cannot be seen as existing in isolation and that there could not be a constrained view of the reality in laying down the law. “The algorithms under Aadhaar are not learning algorithms...they only ensure a biometric match; no analysis of any data...they are not the same algorithms as those of Google”, contended Mr. Dwivedi. “The UIDAI shall still be accountable under Article 32...the concern is regarding the private entities”, he continued, in context of section 57 of the Act of 2016. “Section 57 requires a law or a contract for a mandate of Aadhaar...the UIDAI does not permit any person or body to act as a ‘requesting entity’ unless it is satisfied of the latter’s need to utilise the authentication facility...section 57 is not so open-ended that a ‘paanwala’ or ‘chaiwala’ could demand Aadhaar”, replied Mr. Dwivedi.Justices Chandrachud and Sikri also posed a query as to how the acceptance or rejection of this need to require Aadhaar based authentication is determined in respect of different entities.Mr. Dwivedi explained that, first, there is a contract with the customer whereunder Aadhaar is sought, followed by a request for permission to the UIDAI.Justices Chandrachud and Ashok Bhushan seemed unconvinced of the power of refusal of the UIDAI in this behalf.Expressing doubt regarding the seeking of permission from the UIDAI being preceded by a prior contract, Justice A. M. Khanwilkar observed, “the categories, as prescribed in Schedule A annexed to the Aadhaar Act, which an entity seeking to use the UIDAI’s authentication facility as ‘requesting entity’ must fall under are very wide”.When Justice Chandrachud inquired about the connection between section 57 with the Consolidated Fund of India and the test of legitimate state interests, in so far as the section permits even private parties to require Aadhaar under a contract, in view of the Aadhaar Act being purportedly aimed at the provision of ‘Subsidies, Benefits and Services’ related to the Fund, Mr. Dwivedi responded, “with private entities discharging functions of a public nature, even the former may be subject to the mandate of the constitution...”Further, Justice Sikri mentioned the argument of the petitioners regarding the reduction of an individual’s identity and existence to the mere Aadhaar number. “It is not as if numbers have not been assigned to human beings except by Hitler, as claimed by the petitioners...there are PNR numbers, credit card numbers, numbers even on the Supreme Court proximity card...”, advanced Mr. Dwivedi.When Justice Chandrachud questioned the mandatory Aadhaar linkage in the light of the Aadhaar number envisaged as being an entitlement under section 3 of the Act, Mr. Dwivedi submitted, “it is the government and not the UIDAI that is mandating the linkage with Aadhaar number...each such notification or statutory provision may be subject to the tests of validity of privacy invasion ...while such linkage may be beneficial under the PDS, it may be regarded as bad under the Prevention of Money Laundering Act...but to strike down the Aadhaar project on account of some of these notifications would be unreasonable...the mandate for Aadhaar under the Act of 2016 is confined to its section 7” “Sections 7 and 57 (of the Aadhaar Act) together canvass the entire scope...

Aadhaar [Day-29] There Is A Possibility Of Abuse Of Aadhaar Data To Manipulate Elections: Justice Chandrachud

Mehal Jain

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