Aadhaar [Day-5] State Cannot Have The Power To Aggregate Data And Destroy Privacy Rights, Shyam Divan Tells Constitution Bench

On Day 5 of the Aadhaar hearing before the Constitution bench of the Supreme Court, petitioner’s counsel, Shyam Divan explained that protection of personal data is of fundamental importance.  Elaborating his thesis that the Aadhaar architecture is capable of surveillance, he subjected the Unique Identification Authority of India (UIDAI)’s defence of Aadhaar to critical scrutiny.

The UIDAI  thus claims in its affidavit that there are privacy safeguards under the Aadhaar Act, and denies that any agency of the Government would be able to track or profile individuals by aggregating information.   Shyam Divan, however, found this too blanket a denial, to be credible.   He argued that biometrics are not only with the Central Identities Data Repository (CIDR), the government agency that stores and manages data for the Aadhaar project.

He pointed out that UIDAI  supported the setting up of State Resident Data Hubs (SRDHs), which has the record of names of persons who enrolled, their location, and their Aadhaar numbers.    He referred to SRDHs in Madhya Pradesh, Haryana, Odisha and Telengana.   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.

Shyam Divan then cited the case of S and Marper v United Kingdom, a case decided by the European Court of Human Rights, which held that holding DNA samples of individuals arrested but who are later acquitted is a violation of the right to privacy.

Justice Chandrachud asked whether the State can’t have a legitimate concern in ensuring that the identity of the social welfare beneficiaries is maintained, in order to ascertain whether the benefits are reaching them.  Profiling political beliefs may not be its objective, he suggested.

Shyam Divan, disagreeing, said that the State’s legitimate concern in this case, could not  justify aggregation of personal data.  Justice Chandrachud, however, suggested that aggregation of personal data, in order to ensure social welfare benefits reach people, may not be a bad idea.   Shyam Divan has assured the bench that he would reply to this point later.

The interlinking of Aadhaar data amounts to 360 degree profiling, Shyam Divan continued.  In a lighter vein, Shyam Divan referred to the  Aadhaar coverage percentages in Delhi, which put the figures somewhere between 117 to 129 per cent.  Senior counsel, Kapil Sibal said in tongue-in-cheek that it is a measure of how much people love Aadhaar.

In the afternoon, Shyam Divan, relying on the Supreme Court’s judgment in the Minerva Mills case, argued that the goals set in Part IV of the Constitution are to be achieved without abrogating Part III rights.  “This also resonates in the recent Puttaswamy (Privacy) judgment”, he added.

Arguments will continue on Thursday, February 1.