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Aadhar Hearing Day 24: AG argues that policy decisions of government approved by experts are not subject to judicial review

Attorney general resumed his arguments from yesterday. He reiterated that we live in a digital era and Aadhaar is the best way to prevent money laundering and deliver subsidies and benefits. He claimed that a lot of govt. funds had gone into this project. “Aadhaar will last for a long time in the future. It has been approved by UN and world bank. Aadhaar is an ongoing process and the technology and security will be updated as and when required.” Said the AG. He argued that the policy decisions of the government approved by experts were not subject to judicial review. He gave example of Unified Access Service License and stated that the three organs of the State should have mutual respect for each other in a democracy.

“Development will slow down if there’s judicial review of every administrative action. Courts should not interfere in matters of technical expertise. The only duty of the court is to expound the language of the act. They cannot decide if a particular policy decision is fair” AG argued.

Justice Sikri remarked, “The petitioners are arguing on the basis of proportionaliy. You say there’s minimal invasion of privacy. Petitioners are challenging that argument.” AG responded that the State has a legitimate state interest in rolling out Aadhaar. “Aadhaar is in line with the Puttaswamy judgement” he said.

J.Bhushan again remarked, “we are not concerned with policy decision. We are looking at the Act and regulations.” AG reiterated that courts cannot question the wisdom of experts.  He alleged that there is no question of privacy involved in this case. The entire challenge is whether Aadhaar is safe and secure, which he had already proved it is, remarked AG. He further explained the sixteen digit virtual ID claiming it to be an excellent safety measure. Chandrachud. J questioned, “ Is the onus on the individual to generate a virtual ID?” AG replied that it is on the individual. J. Chandrachud again questioned as to whether twenty crores people could do it. AG replied that it was an additional measure. J. Chandrachud stated that this measure should be applicable to every Aadhaar no. without the individual having to generate it. ”Perhaps Aadhaar passes the test of legitimate state interest, but proportionality is in question” he said. AG responded by saying that it stands the test of proportionality because all alternative measures were considered before adopting Aadhaar. AG repeated that the court should not become an approval authority. “It is the duty of the State to look after the welfare of the people in a democracy.” He added.

Justice Chandrachud said, “Biological attributes” is open ended. AG responded saying that blood, urine, DNA can be added, but it’ll be subject to examination by the courts, just like at present the court was examining whether collection of fingerprints and Iris scans were a violation of privacy. AG cited Section 55 and stated that the parliament will be an oversight body. J. chandrachud responded saying that the power of UIDAI to decide what is ‘biological attributes” and the method of collecting it has to meet the test of proportionality. Moving further J. Chandrachud said, “The regulations don’t need the approval of the parliament under section 55. The parliament can only disapprove of it. But the initial power to frame regulations lies with UIDAI which might be a case of excessive delegation.” AG responded that he’ll answer this point later.

AG then handed over to the bench a UN report praising Aadhaar. He then read out India’s statement at the 20th session of UN commission on science and technology for development on the theme: New innovation approaches to support the implementation of sustainable development goals. He also mentioned the ’Pradhan Mantri  Gramin Digital Saksharta Abhiyan’ for spreading digital literacy in rural areas.

The Bench then rose for lunch.

After lunch AG continued with his arguments. AG read out an American judgment that dealt with the issue of the taking of fingerprints in the context of verifying a prior criminal record. The fingerprinting ordinance in that case was upheld because it was adjudged to be a minor inconvenience, minimally intrusive, and not a “fundamental decision”, such as the choice of contraception. However Chandrachud J pointed out that the issue was not fingerprinting per se, but narrow tailoring. He recalled that petitioners had taken examples of Identification of Prisoners Act and Bombay Habitual Offenders Act, which were examples of narrow tailoring. Chandrachud J stated that the petitioners’ objection was not to fingerprinting per se, but to the pervasive nature of Aadhaar.  AG argued that the purpose is prevention of fraud by having a universal ID. Therefore it satisfied a vital state interest. He added that the purposes are specific – preventing subsidy loss, preventing income tax fraud, and preventing terrorism. Chandrachud J questioned if Sec 7 is sustained, the question still remains whether Aadhaar can be expanded to include use by private parties. AG stated that he will address it later.

AG then read out a case from New York, also dealing with fingerprinting, and said that fingerprinting does not carry any stigma or presumption of criminality. “This case said that fingerprints can be used for non-criminal proposes, as a valuable and reliable means of identification. There is no stigma and no unwarranted invasion of liberty” he explained. AG repeated the point that the inconvenience is minor, and the violation of dignity is non-existent. “The case also said that even if there are alternative means, the choice is to be made by the legislature, and not by the courts. And if the means adopted are reasonable, the legislative choice cannot be called into question.” He added. AG argued that the allegation that this could be used for surveillance is baseless, because no government in the last seventy years has engaged in surveillance, apart from the Emergency. He alleged that the Court can’t go into legislative motive, or go behind the stated objective of the Act.

AG then referred to a US SC judgment – Whalen v Roe. Whalen was a case involving retention and storage of data about pharmaceutical drugs. The US SC held that there was no constitutional violation, and the possibility of misuse was not a ground to invalidate the patient identification mechanism. The Court in Whalen did not decide what would happen if there was an unauthorised disclosure. AG argued that this shows that the mere possibility that a large quantity of data may be misused is no ground.

Sikri J however remarked that the position in European law was diametrically opposite. AG replied that American SC was 250 years old and has often been followed by the Indian courts.  Thereafter some lighthearted discussion took place between Sikri J and AG on whether foreign judgments should be looked at all or not. AG yet again referred to paragraphs from Whalen v Roe, explaining about balancing of interests. AG also explained about the social security numbers, which stated that collection of personal data like sexual orientation etc can cause stigma, but the kind of data collected by the SSN does not, and serves a legitimate government interest.

Chandrachud J pointed out the distinction between the American Social Security number and Aadhaar. He stated that SSN is more like a PAN card. “SSN does not involve biometrics and there’s no authentication requirement” he added. AG responded saying that the American SSN collects vastly more information than Aadhaar.  Chandrachud J again remarked that his recollection from his student days is that the SSN only has your name and a number. To which AG replied that was indeed true. “But in any case, the Aadhaar Act says that personal data cannot be disclosed” he said. AG then referred to a New York Supreme Court judgment on a fingerprint identification program (Buchanan v Wing). He also quoted an American judgment called People v Stuller. This involved fingerprinting in a rape case. CJI however responded saying that this case was not relevant because nobody was saying that you can’t take fingerprints in a criminal investigation. AG then discussed the case of Brown v Brannon, which was about the ‘massage of private parts for hire.’ He further cited an American SC judgment that stated the government can impose non-discriminatory conditions for the receipt of benefits. AG read out the part of the judgment that stated that wide latitude should be given to the State when implementing welfare programs. The case also dealt with the use of Social Security numbers to eliminate fraud and duplicates.

The Bench then rose for the Day.

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