As Attorney General KK Venugopal resumed his submissions on Day 24 of the Aadhaar final hearing, he 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.
To buttress his argument, he relied on the judgment in Narmada Bachao Andolan v. UOI [(2000) 10 SCC 664] in so far as it was observed therein that “It is now well-settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision...The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and peoples fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them...In respect of public projects and policies which are initiated by the government, the courts should not become an approval authority. Normally such decisions are taken by the government after due care and consideration. In a democracy, the welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible government...”
“This may be true in the context of the legitimacy of a policy decision, but where there is a review on grounds of proportionality, that it is a policy decision cannot stand in the way of the courts,” remarked Justice DY Chandrachud.
In the light of the power of the UIDAI under Section 54(2)(a) of the Aadhaar Act of 2016 to frame regulations on inter alia what may constitute ‘biometric information’ for the purpose of the open-ended definition in Section 2(g) of the Act, Justice Chandrachud noted, “It has been left to the unguided discretion of the Authority to demand, in the future, samples of DNA, blood, urine or even sweat...does this power itself pass the test of proportionality?”
When the AG indicated Section 55 of the Act of 2016 which requires any rules or regulations framed thereunder to be laid before the Parliament, Justice Chandrachud responded, “But as per the provision of Section 55, any such regulation will continue to be in force until it is disapproved by the Parliament...the mandate for laying it down before the Parliament does not mask the excessive delegation permitting the framing of such a regulation in the first place...”
In the course of the hearing on Wednesday, the AG cited several American judgments on the validity of collection and retention of sensitive biometric and demographic data:
Whalen v. Roe (1977)
Herein, a 1972 statutory framework requiring prescriptions for specified dangerous legitimate drugs to be prepared on an official form was under challenge. As per the statutory mandate, One copy of the form, which required identification of the prescribing physician, dispensing pharmacy, drug and dosage, and the patient's name, address, and age, was to be filed with the State Health Department, where relevant data was recorded for computer processing. All forms were retained for a five-year period.
In the said case, the US Supreme Court had held, “The patient identification requirement is a reasonable exercise of the State's broad police powers...Neither the immediate nor the threatened impact of the patient identification requirement on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated suffices to constitute an invasion of any right or liberty protected by the Fourteenth Amendment...The remote possibility that judicial supervision of the evidentiary use of particular items of stored information will not provide adequate protection against unwarranted disclosure is not a sufficient reason for invalidating the entire patient-identification program...”
Buchanan v. Wing (1997)
Here, the petitioners and their four minor children were recipients of Aid to Families with Dependent Children (ADC) and food stamps from the Broome County Department of Social Services. The petitioners had received notice from the Department that they were to participate in an identity verification procedure known as the automated finger imaging system (AFIS) as a condition of eligibility for the said benefits. Petitioners had responded that they would not participate because of their religious convictions. The Commissioner of the Department had thereafter discontinued their ADC and food stamp entitlements for failure to comply.
The American Supreme Court had concluded that “the respondent (Department’s) determination that petitioners failed to demonstrate a good cause basis for exemption from the finger imaging requirement was rational and must be sustained. While petitioners testified to their belief that implantation of microchips and interaction with laser technology would brand them with the ‘mark of the beast’ and thereby infringe upon their religious principles, they nevertheless failed to set forth any competent proof that the AFIS actually involved any invasive procedures marking them in violation of their beliefs...”
It may be worth mentioning that senior counsel Sanjay Hegde had advanced an identical argument on behalf of one of the petitioners. He had submitted that the son of his client, a Christian by faith, has been denied college admission for the want of Aadhaar, which he cannot procure for religious reasons. He had stated that Christians relate the Aadhaar number to “the beast” and had relied on the ‘Book of Revelation’ in support of his contention.
People v. Stuller (1970)
Herein, the constitutional validity of the Palm Springs Ordinance was upheld; the local ordinance mandated individuals engaged in specific categories of employment, including inter alia hotel bartenders, car wash employees, bus and taxi cab drivers, to register with the Chief of Police of the City, providing such details as name, age, personal description, local residence, permanent residence, nearest relative or friend and previous employment. In addition, fingerprint cards of the concerned individuals were prepared and forwarded to the Bureau of Criminal Identification and Investigation of the State of California as well as the FBI.
The fingerprints so collected had aided in the identification and arrest of the assailant charged with the rape of a 19-year-old girl and oral copulation of a 14-year-old child.
Brown v. Brannon (1975)
Here, the claim raised by the plaintiffs to a licencing ordinance was that it violated the constitutional right of privacy by compelling the applicant for a license as a `massagist' to submit to fingerprinting by the local police, by requiring submission of photographs and by requiring applicants to have a medical examination and submit a certificate, and by requiring submission to a physical examination by a licensed physician when the Durham City Council has reason to believe that the applicant has contracted a communicable disease.
It was held that “the photographing and fingerprinting obviously serve to aid police and administrative personnel in identifying and investigating potential applicants for a license. Such investigation is made to assure the municipality to the extent possible that the applicant does not seek to operate a house of ill repute by hand. The records also would aid in the efforts of police to enforce the criminal statutes of North Carolina relating to offenses against public morality and decency. Such licensing may reasonably have the effect of protecting the general public from obtaining messages from persons who have communicable diseases, or who have a long history of sexual violations, or who is a minor”.