UIDAI Can Deprive Individuals of All Civil Rights: Aadhaar Hearing

Day 3 of the hearings saw arguments on the right to privacy, and problems with the Aadhaar Act 2016

Senior advocate Shyam Divan continued his arguments for the petitioners on day 3 of the Supreme Court’s hearings on the constitutionality of Aadhaar. Today’s arguments focused on the main takeaways from the right to privacy judgment and the failings of the Aadhaar Act 2016.

Key Takeaways from Right to Privacy Judgment

The right to privacy judgment came about because of the challenges to Aadhaar, of course, and it was inevitable that the decision of the 9-judge bench would prove important to the current hearings.

After referencing the relevant sections of the six concurring opinions provided by the judges there (including that of Justice Chandrachud who is also hearing this case), Divan presented an 8-point summary of the privacy judgment, to emphasise the factors that need to be considered when deciding whether Aadhaar infringes the right to privacy.

1. Privacy is a natural right, and is an essential precondition for all other fundamental rights as well. It includes the right control access to information about an individual.
2. Privacy is intrinsically linked with human dignity.
3. Privacy is essential for liberty and freedom, and doesn’t just come from other rights.
4. The right to privacy not only protects an individual from the State, but also puts an obligation on the State to protect encroachment of an individual’s rights by non-state actors.
5. Privacy is not an elitist concept; There is no need for conflict between civil-political and socio-economic rights, and subordinating the former to the latter has led to terrible consequences in the past.
6. Having access to an individual’s personal information grants a great deal of power over them. Much of this information is kept separate and therefore safe, but when this information is aggregated or linked, it can be a threat to freedom.
7. The right to privacy is not unrestricted, but any restriction of it has to be by a law which is just, fair and reasonable.
8. Finally, there must be judicial remedies for any violations of the right to privacy, in accordance with the rule of law.

Problems With the Aadhaar Act 2016

Divan’s arguments on the first two days had centred on problems with the Aadhaar scheme prior to the enactment of the Aadhaar Act 2016. On Tuesday, he began arguments on what’s wrong with the Act, including violations of the right to privacy.

Over the course of the post-lunch session, he identified several issues with the Act and the way Aadhaar is being used. These include:

1. The ambiguous definitions of “core biometric information” and “biometric information”.
2. The definitions of “enrollment agencies” and “registrars” under the Act still allowed the data collection process to be privatised (thereby making it more difficult for the government to ensure safety of data).
3. The contradiction between section 3 of the Act, which refers to Aadhaar as an entitlement, and the way in which it has been made mandatory, thereby making the concept of informed consent in this section redundant.
4. The fact that under section 7 of the Act, Aadhaar can be made mandatory for receipt of essential benefits or services. An individual should have the right to identify themselves in a reasonable alternative manner, but this provision negates that option.
5. The security concerns that arise because the UIDAI is allowed to outsource the security of the central database. The spate of reports about security lapses underlines the danger this poses.
6. The UIDAI’s power to deactivate an Aadhaar number, with very limited recourse for the holder. Since Aadhaar is being linked to so many benefits and services, this means that the UIDAI can effectively deprive a person of their rights if they deactivate their Aadhaar number.
7. The entire architecture for storage of data under the Act, which enables a surveillance State. It doesn’t matter whether or not someone is actually tracking you, the fact that they can do so is the problem.
8. The restriction under section 47 of the Act that allows only the UIDAI to file a complaint about violations of the Act, not the individual(s) affected.
9. The government’s power under section 48 of the Act to take over the UIDAI and its data in the event of a ‘public emergency’.
10. The power to delegate making rules and regulations under the Act, which has been over-used and led to a lack of clarity on protecting data.

The judges refrained from asking too many questions, though they did try to draw a distinction between whether the problems raised by Divan demonstrated issues with the Aadhaar Act itself, or arose because it wasn’t being properly implemented.

The hearings will resume at 11:30 am on Wednesday, 24 January.

(This article is based on the detailed tweets of advocate Gautam Bhatia (@gautambhatia88) to a large extent, as he reported the proceedings from inside the court)

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