Aadhaar Hearing Day 10: Kapil Sibal says denial of entitlement for want of a particular proof of identification is denial of Fundamental Rights

As the hearing on the string of writ petitions challenging the constitutionality of the Aadhaar Act of 2016 resumed today for the 10th day, Senior Counsel Kapil Sibal continued with his arguments.

He began with reading out the definition and purpose of biometric database.” These definitions are from the national ID law of Israel.”, he said. He pointed out the voluntary nature of the ID cards handed to the residents. Focusing on the consent in Israel’s ID law he further pointed out that the bio-metrics were to be used only for the purpose they were collected. Further, access to the database was also restricted to a particular purpose. There was no provision for metadata in their law, he added.

Kapil Sibal then referred to the Aadhaar Act saying,”it is mandatory and for lifetime. Consent is illusory.” He alleged that one can only use the database for purpose authorised by law. He pointed out how the purpose of ‘national security’ was misused in India and how Some NGOs were targeted for national security. He also mentioned the regulation that stated that Aadhaar could be deactivated for national security purposes.

Thereafter Sibal laid down his first proposition- “Information is power.” He referred to the Puttaswamy judgment which observed that information is knowledge.  He then read excerpts from Harvard Business Review which talked about WhatsApp acquisition by Facebook for a very high valuation. Sibal Pointed out that the reason why these services were so highly valued was just because of the information they provided. He referred to the third paragraph of the same chapter quoting the power of networks. He gave examples of Uber and other services.

Coming back to the Puttaswamy judgment, Sibal then read out the famous quote that Airbnb, Uber, etc own nothing. He argued that these services have information which is scattered and not connected. “Information being aggregated poses threat.”, he claimed noting the Puttaswamy judgment. “In silos, this information is inconsequential. Aggregated, it provides a picture of personality.” Sibal added.

Moving further Kapil Sibal then read out paragraph 111 of Puttaswamy judgment stating, “We cannot argue that State cannot insist for national ID. But we can ensure that my ID is not in public, not in a centralised database and that when I am transacting with a person, the ID can be established.”

Sibal remarked that on one hand we have public interest; on the other we have personal information in public domain.  He gave an example, ‘when I am travelling, it has nothing to do with public interest.’ He further cited the example of the woman who had to deliver a baby outside the hospital for want of Aadhaar. Sibal alleged that hospital/health information was not public interest. Henceforth, he argued, that the State cannot choose how one proves his citizenship, only he himself can and nobody can deny that.

Sibal then moved on to his next argument. He pointed out the voluntary nature provided in section 3 of Aadhaar Act which he argued that it was actually mandatory. He said, “Log of such information is created and stored every time a transaction is authenticated. However, the purpose of the authentication will not be known.” Sibal then reads out regulation 26 which mentioned that metadata was also collected and stored. He referred to Section 57 arguing that even in the absence of this section, some other Act could have provided for the use of Aadhaar for other purposes. “However, this section brings out the true intent of the Act to establish it as an exclusive proof of identification for purposes other than the ones stated in the object.” Sibal added.

Sibal argued that consent was for authentication but the law required to get the entitlement only through Aadhaar. “Then, what’s the purpose of obtaining consent?”, the counsel enquired.

Kapil Sibal now moved on to his third submission on ‘concentration of information in a single entity’. He stated that such a concentration gave enormous power to the entity. He reads out parts of Puttaswamy judgment on this. Sibal pointed out that the Act also contained provision for Audits and that the respondents should provide the reports of the audits that have been done.

Sibal’s next submission was on proportionality. He further elaborated on when can a court look into the proportionality of a statute. He also mentioned that for an act to be proportional, it had to be seen that:

  1. What are your objectives and
  2. If your policy is the least restrictive way to achieve those objectives.

Sibal argued that in the current case, there was  no nexus with the entitlement. It was violative of this doctrine.

Hearing the argument, Sikri J. referred to the ‘culture of justification’ in South Africa. Thereafter a brief discussion on that took place in the Court room.

Moving on Kapil Sibal stated before the bench that the very concept of Aadhaar was inconsistent with the doctrine of proportionality. He cited various provisions under Aadhaar Act which conferred wide powers on the authority.

Sibal pointed out that the State couldn’t stop the pilferage of food grains as it now had to be given personal data. “How can it be trusted with the security of that data?” he questioned.

He read on from his submissions that the purpose of Aadhaar Act was to provide for subsidies, benefits expenditure of whose was incurred from Consolidated Fund of India. He then enquired, “Whether the whole expenditure has to be incurred from CFI or even the part? How is it to be interpreted?”

Sibal mentioned that were several entitlements which were available to non-residents. ‘The state cannot deny benefits to anyone only for the want of a certain proof of identity.’ He alleged.

“Most of the entitlements flow from part III of the Constitution. Denial of that entitlement for want of a particular proof of identification is denial of those fundamental rights.” Sibal added. He stated that this procedure did not meet the test of either Article 14 or of Article 21.

Moving on to the next submission, Sibal read out para 150 of the Puttaswamy judgment in context of making people part with their biometrics for availing their entitlements. He stated that one’s right to livelihood was protected by the Constitution and further imposing a condition to exercise that right amounted to violation of that fundamental right.

Sibal then read out a judgment delivered by Justice Sutherland on imposing a restriction to enjoy constitutional rights.

Thereafter the Bench arose for lunch and resumed hearing after 2.30 pm.

After lunch, Kapil Sibal resumed with his arguments. While referring to Article 5 of the Constitution on citizenship Sibal stated that in case a citizen doesn’t have Aadhaar, his right to entitlements as a citizen will be abrogated. “The moment you impose a condition, you’re denying a citizen of his rights. No defence can be taken from state like infrastructure is not in place.” Sibal alleged. He then referred to Section 14A of Citizenship Act regarding the issue of national identity card stating that it related to a person’s citizenship. “Nobody can object to it. Why do we need Aadhaar then?” Sibal remarked.

Sibal pointed that one’s identity had an umbilical cord status as a citizen. “That’s fine. But my primary identity is that of a citizen not an Aadhaar card holder.”, he added.

Kapil Sibal then read out the opinion of Justice Das in In Re Kerala Education Bill. Further he alleged, “You are surrendering the rights of the future members like children which cannot be accepted. This cannot be done under the Constitution.”

The Counsel further mentioned that in case an individual refused to take Aadhaar, he would be denied of the entitlements. This itself was violative of Article 14 of the Constitution.

However Chandrachud J asked the Counsel whether the Govt imposed proof of identity on reasonable conditions. To which Sibal replied that one’s status related to his entitlement. But Chandrachud J yet again remarked, “There has to be some proof of that status.”

Sibal stated  that Aadhaar doesn’t establish the status. He mentioned that as long as one can prove his identity for the purpose of that entitlement by any method, he is entitled to the benefits.

CJI Dipak Misra intervened in between and pondered, “No statute can barter to give you your fundamental right in return of another fundamental rights.” However DY Chandrachud J yet again remarked that submission of Kapil Sibal was that giving just one option of proving identity was unconstitutional. Chandrachud J further pointed out that this argument supposed that every person would have atleast one form of identity with him. He enquired as to if it would be correct to assume that. Kapil Sibal replied that in case an individual did not have an identity, the Govt. could provide a procedure to ensure the person has an identity. “It all boils down to choice.” Chandrachud J said. Sibal  agreed with the remark of Justice Chandrachud.

Moving further Kapil Sibal referred to multiple schemes including bonded labour scheme, national child labour scheme, national child labour project scheme, etc. which mandatorily required production of Aadhaar. It was thus a denial of fundamental rights, Sibal alleged.

Kapil Sibal moved on to his next submission on pilferage of food grains. Hestated that  the Aadhaar does not, as a matter of fact, stop pilferage or leakage. He read out the judgment of the SC in PUCL v Union of India, which had cited the Wadhwa Committee Report to establish the multiple issues with the PDS system.

Sikri J however pondered that even if one reason for fraud was being taken care of through Aadhaar, then Aadhaar’s failure to take care of other kinds of fraud will not necessarily make it unconstitutional. To which Kapil Sibal replied, “it won’t, but it will raise questions about proportionality. Our argument is that the scheme is disproportionate. “

Kapil Sibal mentioned that he was placing on record a compilation that will repudiate all the factual claims made by the State.

Sikri J yet again remarked that all the other proofs of identity have been misused like multiple passports. He stated that maybe that was a reason for Aadhaar, to prevent multiple IDs. Sibal replied, “People have multiple Aadhaars, and there’s no way that the State can show that that cannot happen.” He stated that the more important point was that if one has multiple identities, then he had to be dealt with under law. “Because some people are breaking the law, the State can’t require everyone to get an Aadhaar.” Sibal alleged.

Sikri J stated that this was again a question of proportionality to which Sibal agreed.

Kapil Sibal then summed up his argument stating that this was the most important case since Independence.  He also mentioned that this case was more important than ADM Jabalpur.ADM Jabalpur was a limited regime. Aadhaar is unlimited.”, he said.

“This judgment will decide the course that this country takes. Will we live in a country where there is choice – or do we live in a country where the State is the arbiter of choice.” Kapil Sibal ended thereby asking the Bench to consider the gravity of this case when they decide.

Thereafter Gopal Subramaniam appeared before the Bench as the next counsel for the Petitioners. Subramaniam commenced his arguments with the Supreme Court’s privacy judgment. He stated that at the core of the judgment was the idea of dignity.

“The fundamental submission is that notwithstanding the advances of technology, the Constitution cannot be obfuscated.” Gopal Subramaniam argued.

He mentioned that there were existing forms of giving benefits that are consistent with the Constitution. He further stated that a crucial factor of dignity was that the most marginalised were not exposed as the most marginalised.

Chandrachud J remarked that social mobilisation was based on the assertion of status to which Subramaniam stated that  he agreed completely but alleged that the question here was whether Aadhaar interfered with status or not.

Gopal Subramaniam argued that the aim of the statute was not simply exclusion, but that it also treated data as property, and anticipated money-making on that data. He further added that bringing in the whole population into an aggregated database was a very serious issue. “There is a state of exception where fundamental rights can be suspended – but short of that fundamental rights cannot be suspended or bypassed.” Subramaniam said.

“The intrusion by the State has to be as minimalistic as possible. That is the soul of the Constitution.” The counsel further argued. He stated that the very concept of “identification” carried a pejorative sense.

Gopal Subramaniam further stated that he will discuss the question of pre-existing forms of identity, before Aadhaar, and how they were made. He then pointed out that Part IX of the Constitution was all about decentralisation. Arguing that it was crucial for Article 14 of the Constitution, he claimed, “Aadhaar “disinter mediates” the State, that is, it erases accountability.”

“When you claim a violation of constitutional rights, it must be decided by a person, and not by a computer or an algorithm.”, he further added.

Gopal Subramaniam mentioned that the soul of Aadhaar was “continuous authentication.” He further alleged that this privileged the digital person over the real person.

CJI Dipak Misra further tried to explain Gopal Subramaniam’s argument and said that the Aadhaar made a person an un-person, to which Subramaniam agreed.

Thereafter the Bench rose for the day. The hearing will continue on Thursday.

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