On 08.02.2018, 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 8th day of arguments, Mr. Kapil Sibal had assailed different sections of Aadhaar Act and Aadhaar Regulations 2016, pointing out that the Act leads to exclusion of people from getting benefits to which they were entitled and did not offer alternatives.
Today, Kapil Sibal began by reading a newspaper report about how people in old age homes were being denied pension because of Aadhaar, to highlight that Aadhaar led to exclusion. Justice Sikri enquired how 1.2 billion people have enrolled for the Aadhaar if there was a problem of exclusion. Justice Chandrachud then pointed out to the two reasons for exclusion: first, the lack of infrastructure, which could be upgraded and hence remedied; second, the problem of fingerprints eroding with age or manual labour – something that could not be remedied. Mr. Sibal agreed, and reiterated that the Aadhaar architecture mandated authentication for availing services and this led to exclusion.
At this point, Mr. Tushar Mehta, Additional Solicitor General, refuted the claim that Aadhaar led to exclusion, and stated that the state had evidence that proved this, which it would present later (i.e. when they began arguments). Mr Rakesh Dwivedi submitted that there were statutory mechanisms to ensure that people were not excluded because of Aadhaar. He cited Sections 7 and 4(3) of the Aadhaar Act where in case of authentication problems, the affected person could show the card and the number. Thus, people could not be denied their benefits if the Aadhaar Card is produced. Addressing the point about old age, he submitted that the provision for an exception had been made for people who could not provide biometric info.
Mr Tushar Mehta added that the Cabinet Secretary had issued directions on 19th December 2017 that ensured that benefits were provided, based on alternate proof, and that special arrangements had been made for carrying out authentication of senior citizens and those who could not make it to the centres. Justice Chandrachud pointed out that this directive from the State came out as late as 19th December 2017. Moreover, it was in future tense, but until the infrastructure was put in place, the people should not be denied their benefits. Justice Sikri added that there were illiterate people and poor people who might not be aware that alternatives were available. Mr Mehta stated that the Respondents would present detailed arguments about this when it was their turn, and would assist the court with coming out with alternatives. Mr Gopal Subramanium interjected and pointed out that the UIDAI had sought to cancel the MoUs with Common Service Centres (which carried out enrollment and authentication) due to allegations of corrupt practices carried out by them. Mr K. K. Venugopal, the Attorney General of India, clarified that the position was that it was sufficient to say that one was enrolled and to provide the enrollment number, and alternatives could be provided in case iris scan and fingerprint authentication failed. Thus there was no question of denying benefits as long as there was an Aadhaar number or an enrollment number. Mr Sibal refuted that argument and pointed out that the Aadhaar number was not enough, as Section 4(3) made authentication necessary. At this point, Mr Sibal prayed the Court to pass an interim order in this regard. However, Chief Justice Dipak Misra asked Mr Sibal to argue on constitutionality, stating that an interim order could not be passed in this regard.
Mr. Sibal continued with the argument that there were high possibilities of exclusion if people were not able to authenticate their biometrics. Justice Sikri pointed out that the section could be interpreted in a manner where if authentication failed, then proof of enrollment could be given. Mr. Sibal submitted that it would amount to adding “or” in Section 7. Justice Chandrachud wondered if that section could be interpreted so that there was no exclusion. Mr Sibal said that the state could not have it both ways, by saying that one method of authentication would apply for those excluded, and another for the others.
Then, Mr. Sibal moved on to discussing the UK Biometrics Identity Project, which was scrapped in 2010. He argued that it was claimed that Aadhaar was to achieve the same objectives – detect illegal migration, fight terrorism and prevent identity fraud for welfare. He read various objections to the Project in the UK by the MPs. Mr. Sibal read out the then Secretary of State Theresa May’s objections to the scheme where she stated that the National ID card scheme represented the worst of the government, was intrusive, ineffective and expensive, it did not stand for a greater good, and that the state was the servant of the people and not their master. Mr Sibal then drew a distinction between social security numbers and Aadhaar, stating that Aadhaar was “Identity+” where the ‘plus’ was the metadata of the individual. He argued that Sections 3, 4, 8 and 57 were the heart of the Aadhaar Act. Even if Section 7 was not there, the State could make Aadhaar compulsory under different statutes like the Food Security Act and the Prevention of Money Laundering Act. He pointed out the irony that the all other proofs of identity, which were otherwise acceptable even by the Aadhaar Act for enrollment, are excluded by the Act and questioned the logic of allowing alternate an ID proof for enrollment but not for identification otherwise. Rewording his argument that Aadhaar was a scheme for ‘one nation one identity’ as ‘one nation one proof of identity’, he pointed out that Articles 19 and 21 allowed for a choice to be given to the individual to choose how to identify herself, but the Aadhaar Act took that choice away. Justice Chandrachud pointed out that the Constitution also postulated multiple identities in terms of gender, status (Eg. SC/ST), and religion and wondered whether the Aadhaar Act accommodated this. Mr Sibal took that point and stated that even the Constitution allowed for multiple identities but the law (i.e. Aadhaar Act) did not. Chief Justice Dipak Misra wondered if the concept of identity under the Aadhaar Act and the concept of identity under the Constitution could be read harmoniously to which Mr Sibal responded that that was possible if the individual allowed it.
He summarised his arguments of the day for the bench – there could be ID Cards, but authentication should be optional; the biometric data should be on the card so that there was no question of metadata; and that citizens should have the choice of providing alternatives.
Mr. Sibal will continue his arguments on 13.02.2018 (Tuesday).