A Constitution bench comprising five judges of the Supreme Court began a hearing on the constitutional validity of Aadhaar, the government’s programme to provide a 12-digit biometric-based identity number unique to each citizen, on Wednesday.
Advocate Shyam Divan, representing the petitioners, said no democratic society had engaged in a programme of the size and scale of Aadhaar, Live Law reported. “There are very few precedents to guide us. Cases from other countries favour us,” he argued. Divan claimed that if the Aadhaar programme was allowed to continue unimpeded, it would “hollow out” the Constitution.
The counsel said the government’s unique identity programme, which it had rolled out through a “succession of marketing strategies and smoke and mirrors” was “designed to tether every citizen to an electronic leash”. Divan claimed that the Aadhaar programme “inverts the relationship between the citizen and the state.”
“Inalienable and natural rights [of citizens] have been made dependent upon compulsorily acquiring an Aadhaar number,” the counsel argued, according to Bar and Bench. “The system results in an electronic trail and profiling of individuals becomes easy...Can I be asked to leave an implant of my body wherever I go? That happens only in a totalitarian state, not a democracy.”
“Does the Constitution allow the state to have so much power?” he asked. “The Constitution is not a charter of servitude. Does the Constitution of India allow a programme where every transaction is recorded?”
Divan said the petitioners sought a declaration from the court regarding the physical autonomy of the individual, as against the state. Alternatively, they should have the right to opt out of the Aadhaar scheme and have their data destroyed, the counsel said.
He added that if the court upheld the Aadhaar Act, no citizen should be deprived of any right or benefit for the lack of an Aadhaar card.
The Supreme Court is hearing a clutch of petitions challenging the validity of Aadhaar based on privacy concerns. In a landmark ruling in August, the court had declared privacy a fundamental right protected under Article 21 of the Constitution. This was seen as a major blow to the Centre’s push for Aadhaar.
The petitions also challenge several other aspects of Aadhaar and the sharing of data collected under it, including making it mandatory for social welfare benefits, to file income tax returns, and linking it to mobile numbers and Permanent Account Numbers.
“Aadhaar has been made mandatory for opening bank accounts, holding insurance policies, making transactions and mutual funds,” Advocate Divan said. “Effectively today, you cannot live as a citizen of India without an Aadhaar card.”
Divan said that petitioners who work in rural areas say that Aadhaar works as a “system of exclusion” in these areas. “People may not be able to come to enrolment centers,” Divan argued. “A large number of people do manual work. Their biometrics are not registered.”
The counsel said that Right to Information replies had shown that by January 15, 2017, there were 6.23 crore instances of the biometric system rejecting fingerprints while the Unique Identification Authority of India claimed there were only a few of such instances.
“As per their own claim, there should not have been more than 1,000 rejections,” Divan argued. “The Aadhaar mechanism is probabilistic not deterministic. If I have certain rights, then how can my enjoyment of them be made probabilistic?
The Constitution bench was initially set up on December 13, but two days later, the Supreme Court agreed to the Centre’s submissions to extend the deadline to link Aadhaar with all government schemes and services to March 31. The interim order also extended the deadline to link Aadhaar with mobile numbers to the end of the financial year.
The court was adjourned for the day, and the hearing will continue on Thursday.
Changes to the Aadhaar progamme
Meanwhile, on January 10, the Unique Identification Authority of India introduced a two-step verification process to ensure users will never have to share their actual Aadhaar numbers, reducing chances of its misuse, and increasing privacy. Starting June 1, all Aadhaar transactions will take place with a virtual ID – a 16-digit, randomly-generated number that will be used for authentication to avail services, instead of the actual Aadhaar number.
The second safety net is “limited KYC”, a mechanism which will regulate how Aadhaar details are stored in the databases of different agencies, such as banks or telecom companies.
On January 15, the Unique Identification Authority of India said it has decided to enable face recognition to add another layer of security for inclusive authentication for Aadhaar card holders. The service will be launched by July 1.