Senior Advocate Gopal Subramanium resumed arguments for the 11th day of the Aadhaar hearing on behalf of the petitioners. Adding to the thread of earlier arguments in the case, he began by saying that the Aadhaar Act is unconstitutional“After the Puttaswamy judgment read with NALSA and Subramaniam Swamy (defamation case) judgments, it is now clear that Article 21 includes within its sweep, dignity.”, Subramanium stated. He further added, “It has been held that when it comes to individual rights versus state concerns, it is the former that has primacy. State actions need to be tested for substantive and procedural due process. Article 14 is not only about nondiscrimination. The Act has no legitimate aim.”

Subramaniam argued that legitimacy of aim needed to be both for discernible ends but it also meant that the Act suffered from excessive delegation. The Act cannot retrospectively validate abrogation of FRs because biometrics itself was flawed. Further algorithmic behavior was itself irrational and beyond UIDAI control.  He pointed out towards the theory of potential harm and stated that overwhelming harm was shown.

He further stated before the Bench that he was going to address the questions of CJI as of last hearing. The question he was first addressing was- ‘Whether virtual person reduces real personhood?’

“Negation of the existential identity through an algorithmic process without human accountability and no reference to justice is clearly unjust. Justice is the queen of all virtues.”, Subramaniam argued. “Inability to access justice is an overarching theme in this Act.”, he added.

He then stated that mockery of federalism and unconstitutional centralisation of power was another limb of his argument.

He then referred to the Aadhaar PAN case- Binoy Viswam – and argued before the Court that the State had taken 3 positions:

  1. Social good.
  2. The services to be provided- which can also be of private players.
  3. Admission by the State that there are serious flaws in collection, retention, etc. of information.

‘However ‘, Subramaniam went on explaining before the Court, ‘the Act is unconstitutional irrespective of the 50s and 60s standard (In Re Delhi Laws Act and Anwar Ali Sarkar) or the 70s standard (Cooper and Kesavananda and Menaka) or through modern Puttaswamy standards because this Act fails the basic reasonableness test.’

He further argued that in the absence of a data protection law, the Aadhaar Act cannot survive. Data Protection Law is generally based on fairness, information sharing principles. But this Act doesn’t satisfy any of the criteria, Subramaniam alleged.

Moving further Gopal Subramaniam referred to Justice DY Chandrachud’s question the other day about mobilisation. Subramaniam stated that this Act impaired people from mobilising and constituted an invasion.

Subramaniam then mentioned that the ability to negate the personhood not merely causes civil death But also constitutional death which is not possible. He argued that the Act’s contemplation of ‘ubiquity’, playing god so to speak, was contrary to a constitutional goal of self-actualisation for everyone. Holding so, he referred to CJI’s judgment in Subramaniam Swamy case.

“Rights and existence or entitlement cannot be subject to the vicissitudes of probability. Constitution guarantees against vicissitudes, does not enable them”, Subramaniam alleged.

“Man transcends algorithm; cannot be enmeshed inside it.” He added.

He further argued that even after assuming a benevolent state, it cannot guarantee the benevolence of an algorithm they do not and cannot control. ”Therefore the project is architecturally unconstitutional.” Subramaniam stated.

He mentioned before the bench that all of the points taken together will have to be looked at cumulatively. He then complemented Shyam Divan for establishing the potentiality of surveillance. 

Subramaniam stated that the very possibility restricted the citizen and that it was per se a violation.

The State demanding disclosure of status itself is demeaning and contrary to affirmative duties of the State, he said.

“Every child is required an Aadhaar to get a birth certificate. State is treating people like they are a flock of sheep.” Subramaniam remarked. He commented that even a flock of sheep required someone more transcendental to lead, hearing which DY Chandrachud J smiled.

Further, Gopal Subramaniam, yet again going through the Puttaswamy judgment argued that dignity was a golden thread that ran between Articles 14, 19 and 21. He then explained how privacy was relevant in a digital world and how to emphasise the constitutional value privacy.

“Silos of information including human relations cannot be centrally aggregated”, Subramaniam claimed. He stated that privacy was concomitant to the right to control personality as held in the judgment of Puttaswamy.

“The survival of existential identity or transactional identity is protected as an inalienable right under the Constitution

Exclusion in constitutional parlance is discrimination. Any Act that leads to discrimination even with the best of intentions will have to go”, Gopal Subramaniam pointed.

He stated that the very attempt to homogenise identity was an anathema to the constitution.

“Our constitution includes the best of two schools of conception of human rights. The Dworkin school of protected interests as well as the Joseph Raz school of excluded reason”, Subramaniam added. He then read out the portion of Puttaswamy judgment that reaffirmed Justice Lahoti’s judgment in Canara Bank case. He emphasized on informational privacy in dealing with Canara Bank.

“Even for apriori state interests such as Income Tax or NDPS Act, this Court had construed such statutes strictly”, Subramaniam stated. He pointed that identification of citizen through a number was completely destructive of dignity.

“How does a man plead a case against the opacity of technology.  What indignity is this? This not a mere violation of a facet of Article 14. It is making a mockery of it.” Gopal Subramaniam argued before the bench.

To this, Sikri J commented that the interpretation given by Gopal Subramaniam was his improvisation. Gopal Subramaniam did not disagree but said that after reading all judgments together right from Anwar Ali Sarkar, all the Constitutional principles and virtues were contained in Article 14.

Moving further Gopal Subramaniam read out the Pesikaka case and pointed before the court that how constitutional rights could not be waived and further the consent had little use here, particularly when no one could be informed fully of the workings of the algorithm.

He then summed up how the very act of dispassionate, mandatory and homogenous identification was destructive of dignity. He referred to the German Constitutional Court decisions in Microcensus and Census cases that struck down legislations because of invasion of privacy.

Thereafter the Court rose for the day. The proceedings will resume tomorrow.

HT to and Prasanna S (@prasanna_s).