On the 11th Day of the Aadhaar Hearing, Senior Advocate Gopal Subramanium resumed his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ by saying that “Aadhaar Act is unconstitutional.” Gopal Subramanium had, on Day 10 of the hearing, argued:
“Aadhaar “disintermediates” the State i.e. 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.”
Below are the highlights from Gopal Subramanium’s submissions on Day 11 of the hearing:
- After Privacy Judgment read with NALSA and Subramaniam Swamy (defamation case) judgments, it is now clear Article 21 includes within its sweep, dignity.
- It has been held that when it comes to individual rights versus state concerns, it is the former that has primacy. State action needs to be tested for substantive and procedural due process. Article 14 is not only about nondiscrimination.
- Aadhaar Act, 2016 has no legitimate aim. Legitimacy of aim needs to be both for discernible ends..but also means. Act suffers from excessive delegation. Act cannot retrospectively validate abrogation of Fundamental Rights.
- Biometrics itself is flawed and algorithmic behavior is itself irrational and beyond UIDAI control.
- Theory of potential harm: Overwhelming harm is shown, standards of scrutiny much higher and the Act does not stand scrutiny.
- Virtual person whether reduces real personhood:
- Negation of the existential identity through an algorithmic process without human accountability and no reference to justice is clearly unjust. Justice is the queen of all virtues.
- Inability to access justice is an overarching theme in this Act.
- Act is unconstitutional irrespective of the 50’s and 60s standard ( In Re Delhi Laws Act and Amwar ali Sarkar) or the 70s standard (Cooper and Keshavananda and Menaka) or through modern Puttaswamy standards, this Act fails the reasonableness test.
- Act impairs people from mobilising and constitutes an invasion.
- The ability to negate the personhood not merely causes civil death but constitutional death, which is not possible.
- Act’s contemplation of ‘ubiquity’ , playing God so to speak, is contrary to a constitutional goal of self-actualisation for everyone.
- Rights and existence or entitlement cannot be subject to the vicissitudes of probability. Constitution guarantees against vicissitudes.
- Even assuming a benevolent state, it cannot guarantee the benevelonce of an algorithm they do not and cannot control, therefore, the project is architecturally unconstitutional.
- The State demanding disclosure of status itself is demeaning and contrary to affirmative duties of the State.
- Every child is required an aadhaar to get a birth certificate. State is treating people like they are a flock of sheep. Even a flock of sheep requires someone more transcendental to lead. (Chandrachud, J smiles)
- Silos of information including human relations cannot be centrally aggregated.
- The survival of existential identity or transactional identity is protected as an inalienable right under the Constitution.
- The survival of existential identity or transactional identity is protected as an inalienable right under the Constitution. The very attempt to homogenise identity is an anathema to the Constitution.
- Our constitution includes the best of two schools of conception of human rights. The Dworkin school of protected interests as well as the Joseph Raz school of excluded reason.
- Identification of citizen through a number is completely destructive of dignity.
- How does a man plead a case against the opacity of technology. What indignity is this? This not a mere violation of a facet of Article 14. It is making a mockery of it.