On 07.02.2018, the 5 Judge bench of the Supreme Court comprising Chief Justice Dipak Misra, and Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan continued hearing the Aadhaar Act case (Puttaswamy v UOI), to decide the constitutional validity of the Aadhaar Act.
On the 7th day of arguments, Mr. Shyam Divan concluded his arguments, Mr Kapil Sibal, appearing for a Petitioner, had begun his arguments with a set of 6 propositions. He argued that the digital world is susceptible to manipulation & personal rights were impacted by the Aadhaar architecture.
Today, Mr Sibal resumed his arguments by going back to clarify his stand on Section 8(3)(c) of the Aadhaar Act, 2016. He argued that the provision was wrongly drafted, because it did not allow for alternatives to biometric data, for authentication. Justice Sikri and Justice Khanwilkar were not convinced by his argument and insisted that alternatives were provided. Mr Sibal reiterated that the Aadhaar architecture was trying to push for “One nation, One Identity”. Justice Bhushan asked what was wrong with that as all were Indians, to which Mr Sibal replied that being an Indian had nothing to do with identity. Since the debate was more political than legal, the discussion was stopped at that. At this point, Justice Chandrachud pointed out that the definition of “identity information” was inclusive and not exhaustive, indicating that there might be something other than an Aadhaar number and biometric information that could constitute identity information. Mr Sibal agreed, but argued that citizens needed to know what that ‘something else’ was. He also pointed out that no other country had a centralised data bank like Aadhaar. Even Israel, which had a system that resembled a centralised identity bank, had the option of opting for it. He argued that the people of the country were more than their Aadhaar numbers.
Mr Sibal then pointed out the different ways of authentication envisaged under the Aadhaar (Authentication) Regulations, 2016 i.e.: Demographic authentication, OTP based authentication, biometric-based authentication, or a combination of any of these. These had to match those in the Aadhaar card. He then pointed out to the ongoing debates on whether data should be presented on a physical card as opposed to in a centralised depository. Even the United Kingdom had scrapped the idea as it had put too much data in the hands of the State.
Mr Sibal then offered a different interpretation to Section 57 of the Act. So far, the discussion had been that this section allowed even private entities access to the data, but Mr Sibal’s interpretation of the section was that it gave the individual the option to use her Aadhaar to identify herself, and nothing could stop her if she wanted to do that. If the section was however interpreted to empower private parties to insist on the Aadhaar to identify oneself, then it was unconstitutional. Justice Sikri remarked that this interpretation of the section offered by Mr Sibal was innocuous.
Mr Sibal moved on to his next submission that no legislation could or should allow an individual’s personal data to be put at risk from a lack of a technologically assured and safe environment. This Act allowed and licenced out the collection and storage of demographic and biometric data. The data was the property of the individual and had to be protected, but such a level of assurance was impossible to obtain in the digital space. He read out from an article that discussed metadata, to show how metadata could be used to reveal the context of the communication, as it contained information on who sent what to whom and from where and when. Calling the digital world a ‘Jurassic Park’, he illustrated how the IRCTC or airlines could pull out your travel history because of Aadhaar and how every thing was linked to it. He reiterated that it might not be misused by the State, but making the citizenry vulnerable was the issue, and the State could not let it happen.
Mr Sibal then proceeded to his next set of arguments:
Mr Sibal concluded his arguments for today with a statement that the Aadhaar impacted fundamental rights and it was inappropriate for everyday transactions.
The matter will be heard next on 08.02.2018.