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Aadhaar is an electronic leash, will hollow out the Constitution: Shyam Divan in Supreme Court

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DailyBiteJan 17, 2018 | 17:27

Aadhaar is an electronic leash, will hollow out the Constitution: Shyam Divan in Supreme Court

One of the most significant courtroom trials of our time has begun in the Supreme Court of India, and the petitioner/s are speaking for every citizen of the Republic of India, who values his/her freedom. The case against Aadhaar, or the Unique Identification Authority of India's pet project of biometrics-based authentication, via relaying all the personal information of a citizen through a central database that has been proved to be leaky and hackable, again and again, is being heard by a constitutional bench of the Supreme Court, beginning today, January 17, 2018.

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While a clutch of petitions are being heard together, they are collectively called the Justice KS Puttaswamy versus the Union of India case, with a number of senior counsels led by Shyam Divan, Arvind Datar, Anand Grover, among others, representing the petitioners. The government and the UIDAI are represented by the attorney general KK Venugopal, among others. The Constitution bench itself comprises Chief Justice Dipak Misra, and justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan.

So far, Shyam Divan has argued in two phases, with a lunch break in between, and the crux of his argument stems from the concept of "bodily and informational autonomy" guaranteed by the Right to Privacy judgment of the Supreme Court in August 2017. While Divan says that the challenge is not only to the Aadhaar Act of 2016, but to the Aadhaar project itself, that was piloted in Maharashtra way back in 2010, and had till 2016, been operated without a legal framework, only as an administrative tool. Divan says Aadhaar Act's ratification of Aadhaar programme is itself problematic and part of the issues the petitioners are requesting the court to reconsider.

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While Divan outlined the broad contours of the Aadhaar case, it prefaces his eloquent evisceration of the Aadhaar project with a warning that if the UIDAI programme is allowed to continue, it will hollow out the Constitution. He added that Aadhaar is an electronic leash, making citizens vulnerable to profiling, while its mandatory push would coerce citizens into acquiring and linking Aadhaar to other nodes of information and facilities.

Divan argued that "Constitution isn't a charter of servitude", and Aadhaar "inverts the relationship between the state and the citizen", saying personal identity and privacy are rights that cannot be infringed upon by the state.

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Divan asks do citizens have the right to have their data destroyed if they so choose? He asserts that citizens cannot be denied any benefit for lack of Aadhaar.

Aadhaar in dates

Divan traces the journey of Aadhaar from a free-floating administrative project launched in Maharashtra to becoming a Bill in Parliament in December 2010, to witnessing judicial scrutiny that underlined its voluntary nature in August 2015, to the passing of Aadhaar Act in 2016. In between, while the activists had warned both the previous UPA and the current NDA government of Aadhaar's many lapses, how they were ignored, while under the Modi regime the mandatory-voluntary conundrum of Aadhaar was engineered, as individual benefits started getting linked to Aadhaar, particularly via the amendment to Income Tax Act via Finance Act, 2017.

Divan argued how a citizen cannot exist independent of Aadhaar anymore, as most of the services are being linked to Aadhaar, despite the many breaches in its security, the private enrolment centres commercially tapping into Aadhaar data illegally, effectively making Aadhaar into a system of exclusion.

There's the question of consent, which children cannot give without making an informed choice. Yet Aadhaar is being made mandatory for school attendance, for mid-day meals, and in many other instances. Moreover, military personnel made to authenticate via Aadhaar have warned about national security disasters, external surveillance of troop movements. Others like Bezwada Wilson, who have linked privacy to dignity, have petitioned against Aadhaar as a tool of discrimination via identity disclosure or profiling, particularly those in jobs such as manual scavenging, or forced and bonded labours in other forms.

Essentially, Divan argued that privacy isn't an "elitist concern", as many pro-Aadhaar commentators and UIDAI itself, including its head Nandan Nilekani, have asserted. In fact, Aadhaar exclusions have been meticulously documented by welfare economists like Reetika Khera and Jean Drèze, as well as Aruna Roy, Nikhil Dey, among others, who have pointed out the multiple issues with Aadhaar-driven authentication system.

Divan also argued that UIDAI's capture of 10 finger prints, iris scan, facial photograph are all biometric-based and flawed methods of authentication, particularly among the poor, the impaired, among those involved in heavy construction activities, physical labour, or growing children. Yet, the data is stored centrally, without adequate protection as the umpteen security breaches have clearly proved, essentially leading to unethical data-mining of citizens.

Divan also notes that UIDAI is the sole arbiter of Aadhaar-related complaints, and individuals don't even have the right to lodge a complaint in case their Aadhaar has been breached or leaked, spilling private information into public domain. Divan argues there's negligible government oversight on the data collected by the UIDAI, making the uses of the data nebulous legally and tactically.

Divan argued that though biometric collection was patently illegal, it was not addressed by the Aadhaar Act, nor was it fixed. At this point, justice Sikri asked if the illegality of the biometrics database would mean the database itself would have to be destroyed. In fact, scaling up can lead to complete profiling of an individual, particularly since Aadhaar is being force-linked to every conceivable operation, civic and economic, in the country. Unlike the biometrics collected for passports or at border checks, the Aadhaar data isn't restricted in its mandate and is being used for almost everything.

In fact, Divan has argued that Aadhaar as first ID was a miniscule minority in numbers, and was mostly obtained via state coercion, making possible an architecture of constant tracking, enabling state domination. He also asserted that Aadhaar savings are questionable, given the instances of leakages and exclusions.

Evidently, this is the very first day, and the petitioners' counsel has made a good opening argument building the case against Aadhaar. That this comes on a day when the UIDAI head two opinion pieces in two of the leading national dailies, preceded by full-page advertorials in The Times of India yesterday (January 16), speaks volumes about the enormity of hurdles ahead of a band of conscientious activists and their legal warriors.

Also read: Four days and counting: Why Supreme Court crisis is far from over

Last updated: January 17, 2018 | 17:39
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