On 20.02.2018, 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.
Continuing his arguments from Day 10, Mr. Gopal Subramanium submitted that Aadhaar Act prioritised a digital person over a real person, and constitutional entitlements had become contingent upon a play of algorithm – which is beyond the control of even the State. The negation of real identity through an algorithm with no accountability was unjust and a devaluation of real identity. The inability to align with justice, according to Mr. Subramanium, is an overarching feature of Aadhaar programme.
Mr. Subramanium laid out the broad outlines of the arguments which he would be developing over the next few days:
Mr. Subramanium began his arguments by pointing out that existential proof, which was within the domain of the person, cannot be ‘judgmentalised’ by the State through this Act and through algorithms. He noted that Judicial Review, a basic feature of the Constitution, held all actors in the State accountable. But justice was not possible if no one was held accountable, and in this case, an algorithmic mistake or a computer glitch could not be brought to the Court of Law to seek justice. This inability to approach the courts of justice, he argued, was the overarching flaw of this Act. Mr. Subramanium further argued that in absence of a data protection law, the Aadhaar Act could not survive. The Act also failed to satisfy the principles laid down in In Re Delhi Laws Act, Kesavananda Bharati vs. State of Kerala, Menaka Gandhi vs. UOI, and Puttaswamy.
Mr. Subramanium argued that fundamental rights could not be subject to the vicissitudes of probability. The Constitution protected us from such vicissitudes, but the Aadhaar Act was subjecting individuals to them. The capacity to aggregate the database, which was possible due to the centralisation of data, made the dangers worse. Citizens would feel monitored and wouldfeel under duress to undertake repeated authentication. To address the Court’s point on how the Aadhaar scheme furthered Part IV of the Constitution, Mr. Subramanium pointed out that the State asking individuals to reveal themselves was the anathema of affirmative action. By doing so, individuals were being reduced to “a flock of sheep” that could be put in a black box that required authentication.
Mr. Subramium read out excerpts from the Puttaswamy judgement and made the following points:
Mr. Subramanium also drew the court’s attention to German constitutional cases on Census (1983) and Micro-census (1969), which established the Basic Right on Informational Self-Determination and struck down laws for violating privacy. He concluded his arguments for the day by posing the question: It is to be seen if the Aadhaar Act violated the right to privacy, which is the quintessence of the Puttaswamy judgement and was an integral part of dignity.
Mr. Subramanium will be continuing his arguments on 21.02.2018.