Summary of Arguments on Day 24 (4th April 2018)

The Attorney General Mr K K Venugopal resumed his arguments from Day 23. He reiterated that in a digital era, Aadhaar is the best way to prevent money laundering and deliver subsidies and benefits. It has been approved by the United Nations and the World Bank.

Mr Veugopal argued that policy decisions of the Government are not subject to judicial review. The three organs of the State should have mutual respect for each other in a democracy. He warned that the process of development will slow down if there is a judicial review of every administrative action. Courts should not interfere in matters of technical expertise. The Courts must only expound the language of the act.

At this point, Justice Sikri pointed out that the petitioners are challenging the Aadhaar Act on the alleged absence of proportionality. To this, Mr. Venugopal responded that the State has a legitimate state interest in rolling out the Aadhaar Scheme. He said that the entire challenge was whether the Aadhaar scheme is safe and secure. The state has already proved that it is a secure scheme. The technology and security would be updated as and when required.

When he began explaining the sixteen digit virtual ID, Justice Chandrachud asked if the onus of generating a virtual ID was on the individual. Mr Venugopal confirmed that the onus is on the individual. Justice Chandrachud wondered whether twenty crore people were capable of generating the virtual ID. Mr Venugopal said that this is just an additional measure. Justice Chandrachud suggested that perhaps this measure should be applicable to every Aadhaar number without the individual having to generate it. The Aadhaar may pass the test of legitimate state interest, but proportionality was still in question. Mr Venugopal argued that Aadhaar does pass the test of proportionality because all alternative measures have been considered and rejected before the Aadhaar was adopted.

Justice Chandrachud then pointed out that the term ‘Biological attributes’ is open-ended. Mr Venugopal responded that blood, urine, DNA, etc. can be added. However, this will be subject to examination by the courts, just like how the court was currently examining whether the collection of fingerprints and iris scans violate privacy. Justice Chandrachud stated that the power of the UIDAI to decide what are ‘biological attributes’, and the method of collecting it must meet the test of proportionality. The power given to the UIDAI to frame regulations might be a case of excessive delegation. Mr Venugopal said that he would respond to this at a later stage.

Just before the court broke for lunch, Mr Venugopal read out India's statement at the 20th session of the United Nations Commission on Science and Technology for Development.

Post lunch, Mr Venugopal cited judgments to support his argument that the state can have a vital interest in the collection of fingerprints. Justice Chandrachud stated that the pervasive use of fingerprints beyond a specific purpose breaches proportionality, but a limited use like in the case of prisoner identification is not a problem. Mr Venugopal said that fingerprinting is not a stigma and used for various purposes. For instance, the fingerprints of US government employees are collected. Collection of fingerprints for non-criminal uses is not an unwarranted invasion of personal liberty. He denied that fingerprints can be used for surveillance, they merely were a simple means for identification. He emphasized that no government in the last seven years has conducted surveillance. Mr Venugopal cited Whalen v. Roe, in which the Supreme Court of the United States held that it cannot be assumed that state security provisions would be improperly administered. Justice Sikri pointed out that the position in Europe is diametrically opposite. He read excerpts from People v. Stuller and Buchanan v. Wing, in support of his arguments. Chief Justice Misra said that Buchanan is not relevant since no one was arguing against the collection of fingerprints in a criminal investigation.

Next, Mr Venugopal spoke about the Social Security Number system in the US, arguing that it was vulnerable to identity theft. Justice Chandrachud pointed out that the SSN system does not collect biometrics, it only contains an individual’s name and number. In that sense, it is similar to a PAN card, not an Aadhaar card. Mr Venugopal argued that the SSN scheme collects more information than the Aadhaar scheme. He also referred to the US Supreme Court judgment that says the government can impose non-discriminatory conditions for the receipt of benefits, and that wide latitude should be given to the State when implementing welfare programs.

With that, arguments on the 24th Day concluded. The matter will be next heard on 5th April.