As the final hearing in the Aadhaar matter approached it’s 10th day, Senior Advocate Kapil Sibal concluded his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Senior Advocate Gopal Subramanian began his submissions in the second session of Day 10 of the Aadhaar hearing. Below are the highlights from Day 10 of the hearing:
Senior Advocate Kapil Sibal’s submissions:
Discussion on biometric database:
- Comparing National ID Law of Israel and Aadhaar:
- As per the National ID law of Israel, the ID Cards handed to the residents are voluntary in nature. There the biometrics are to be used only for the purpose they are collected for. Further, access to the database is also restricted to a particular purpose. No provision for metadata in their law.
- Aadhaar is mandatory and for lifetime and consent is illusory. A regulation says that Aadhaar can be deactivated for national security purposes. The purpose of ‘national security’ is misused in India. Some NGOs are targetted for national security.
Discussion on ‘Information is power’:
- Airbnb, Uber, etc own nothing. These services have information which is scattered and not connected. Information being aggregated poses threat. In silos, this information is inconsequential. Aggregated, it provides a picture of personality. We can’t argue that State cannot insist for national ID. But we can ensure that my ID is not in public, not in a centralised database and that when I am transacting with a person, the ID can be established.
- On one hand we have public interest, on the other we have personal information in public domain. Gives an example that when I am travelling, it has nothing to do with public interest. Recently a woman had to deliver a baby outside the hospital for want of Aadhaar. Hospital/health information is not public interest.
- State cannot choose how I prove my citizenship, only I can. And nobody can deny that.
Discussion on voluntary nature provided in section 3 of Aadhaar Act, 2016 but says that it is actually mandatory:
- Log of such information is created and stored everytime a transaction is authenticated. However, the purpose of the authentication will not be known.
- Metadata is also collected and stored.
- Even in the absence of this section, some other Act could have provided for the use of Aadhaar for other purposes. However, this section brings out the true intent of the Act to establish it as an exclusive proof of identification for purposes other than the ones stated in the object.
- Consent is for authentication. But the law requires to get the entitlement only through Aadhaar. Then, what’s the purpose of obtaining consent?
Discussion on concentration of information in a single entity:
- Such a concentration gives enormous power to the entity. (Reads out the privacy judgment)
- The Act also contains provision for Audits. The respondents should provide the reports of the audits that have been done.
Discussion on proportionality:
- For an act to be proportional, it has to be seen that:
- What are your objectives.
- If your policy is the least restrictive way to achieve those objectives.
- In the current case, there’s no nexus with the entitlement. It is violative of this doctrine.
- The very concept of Aadhaar is inconsistent with the doctrine of proportionality. (Points out various provisions under Aadhaar Act which confer wide powers on the authority)
- The State couldn’t stop the pilferage of food grains, it now has to be given personal data. How can it be trusted with the security of that data?
- The purpose of Aadhaar Act was to provide for subsidies, benefits expenditure of whose was incurred from Consolidated Fund of India. Asks whether the whole expenditure has to be incurred from CFI or even the part? How is it to be interpreted?
- It is my status from which the entitlements are to flow. There several entitlements which are available to non-residents. The State cannot deny benefits to anyone only for the want of a certain proof of identity.
- Most of the entitlements flow from part III of the Constitution. Denial of those entitlement for want of a particular proof of identification is denial of those fundamental rights. This procedure doesn’t meet the test of either Article 14 or of Article 21 of the Constitution.
- My right to livelihood is protected by the Constitution. Imposing a condition to exercise that right amounts to violating that fundamental right.
Discussion on the national register of citizens:
- There’s no difficulty in connecting identity to status. However, my primary status is that of a citizen, not of an Aadhaar Card holder.
- The Aadhaar architecture is defective. But even if it was perfect, Aadhaar could not be made compulsory or mandatory.
- The doctrine of unconstitutional conditions holds that the State cannot make a benefit or privilege conditional upon an individual giving up their rights.
- When you make essential benefits conditional upon giving up rights, you place individuals between “a rock and a whirlpool.” A condition that precludes you from enjoying a benefit on the basis of an unreasonable classification is void.
Discussion between the Bench and Kapil Sibal:
- Chandrachud, J: If the government was to give you choice of two identities, can you refuse to give either. If your entitlement depends on who you are, then can’t the government require proof on that count? Is it not a reasonable condition?
- Kapil Sibal: Proof still has to be linked to what entitles you to that benefit in the first place, which is your status.
- Chandrachud, J: Even if entitlement is beyond dispute, there has to be minimal way of proving who you are.
- Kapil Sibal: But I can have different ways of proving that fact. There are various ways of establishing identity. Aadhaar doesn’t establish my status. And I can prove my identity in other satisfactory ways.
- Chandrachud, J: A condition is unconstitutional if it requires you to relinquish a constitutional right. He says that if the latter part is established, then why do you need anything further?
- CJI: Kapil Sibal’s submission is that you can’t be asked to barter or surrender one fundamental right in order to have access to another.
- Chandrachud, J (To Kapil Sibal): So your argument is that the constitutional violation lies in restricting the choice of identity to one?
- Kapil Sibal: Yes.
- Chandrachud, J: A premise of the argument seems to be that everyone has at least one form of identity. If a government program is an enabler for people who have no identity, would that save the constitutionality?
- Kapil Sibal: Even if true, it would only apply to those cases.
- Chandrachud, J: In that case, the government should be able to prescribe and make compulsory one identity for those who have none.
- Kapil Sibal: No, the government can prescribe a method by which such persons can get an identity. (Points to the Aadhaar Act which requires pre-existing identities in order to get an Aadhaar, apart from the introducer provision). The point of Aadhaar is not to grant identity to those who don’t have it, but to authenticate identity. A condition imposed on the basis of status is reasonable, but this is not one. There can be a condition to prove my status, but on that, I have the right to prove it in a reasonable way. “Aadhaar is a colossus, and we are underlings”
- Chandrachud, J: Your basic point is that a citizen must have a choice in deciding how to establish her identity.
- Kapil Sibal: Yes, through a reasonable manner prescribed by law.
- (Reads out a notification that makes Aadhaar compulsory for bonded labour rehabilitation schemes) Imagine the consequences.
- (Reads out other notifications that make Aadhaar mandatory for child labour welfare schemes): Many of these schemes are meant for the most marginalised, and it is they who will be excluded. If this is not a denial of fundamental rights, then what is?
- Aadhaar does not, as a matter of fact, stop pilferage or leakage
- Sikri, J: Even if one reason for fraud is being taken care of through Aadhaar, then Aadhaar’s failure to take care of other kinds of fraud will not necessarily make it unconstitutional.
- Kapil Sibal: It won’t, but it will raise questions about proportionality. Our argument is that the scheme is disproportionate. (Places on record a compilation that will repudiate all the factual claims made by the State.)
- Sikri, J: All the other proofs of identity have been misused, like multiple passports. Maybe that’s a reason for Aadhaar, to prevent multiple IDs.
- Kapil Sibal: People have multiple Aadhaars, and there’s no way that the State can show that that cannot happen.
- Sikri, J: This is again a question of proportionality.
- Kapil Sibal: This is the most important case since Independence. He says that this case is more important than ADM Jabalpur. ADM Jabalpur was a limited regime. Aadhaar is unlimited. This judgment will decide the course that this country takes. Will we live in a country where there is choice – or do we live in a country where the State is the arbiter of choice.
Senior Advocate Gopal Subramaniam’s submissions:
- The fundamental submission is that notwithstanding the advances of technology, the Constitution cannot be obfuscated.
- There are existing forms of giving benefits that are consistent with the Constitution. A crucial factor of dignity is that the most marginalised are not exposed as the most marginalised.
- Chandrachud, J: Social mobilisation is based on the assertion of status. GS says he agrees completely, and the question is whether Aadhaar interferes with status.
- Gopal Subramaniam:
- Bringing in the whole population into an aggregated database is a very serious issue.
- There is a state of exception where fundamental rights can be suspended – but short of that fundamental rights cannot be suspended or bypassed.
- The intrusion by the State has to be as minimalistic as possible. That is the soul of the Constitution. the very concept of “identification” carried a pejorative sense.
- Aadhaar “disintermediates” the State, that is, it erases accountability. This is crucial for Article 14 of the Constitution. When you claim a violation of constitutional rights, it must be decided by a person, and not by a computer or an algorithm.
- The soul of Aadhaar is “continuous authentication.” He says that this privileges the digital person over the real person.
Gopal Subramaniam will continue his arguments on Thursday.
Source: twitter.com/gautambhatia88 and twitter.com/SFLCin