SC Aadhaar Hearing-Aadhaar represents a complete breakdown of trust as it presumes if you don’t have it, then you are a crook” –Shyam Divan

 Moneylife Digital Team

Mr Divan told the five judge Bench that Aadhaar is based on the assumption that we are a nation of knaves. “This represents a complete breakdown of trust, because the presumption is that if you do not have Aadhaar, then you are a crook. In a liberal democracy, routine everyday transactions cannot be made conditional on a barter of your biometric information,” he said.

He said Unique Identification Authority of India (UIDAI) has violated multiple orders passed by the apex court saying that Aadhaar must be voluntary. “UIDAI took no responsibility for the safety of the data. UIDAI created an aura of necessity and used enrolled whose quality was dubious. UIDAI ignored the 2011 Standing Committee’s recommendations, and pressed ahead in order to create a fait accompli. UIDAI actively funded the State Resident Data Hubs (SRDH) so that datasets proliferated, without statutory backing,” Mr Divan said.

The senior counsel contended that UIDAI ignored norms laid down by the Supreme Court since 1975, which articulated the fundamental right to privacy, and which was unanimously affirmed in the privacy judgment. All these judgments said that you must have a law if you want to infringe on privacy.

Talking about rule of law, Mr Divan said, “The notification of 2009 constituting UIDAI did not mention biometrics or fingerprints. The statutory norm for collecting demographic data was the census Act. UIDAI did not follow this. The ID of Prisoners Act and the Bombay Habitual Offenders Act had established statutory norms for collection of fingerprints. However, UIDAI violated all these norms.”

Justice Dhananjaya Y Chandrachud enquired about use of multiple interfaces between individual and the State like tax, electricity bills and wanted to know how use of Aadhaar instead of PAN would be different in such scenario. “…your argument seems to be a problem with centralisation. Is it the centralisation that what makes it unconstitutional? Because every time I use a device with an IP, say to book an Uber, my location can be tracked. What is the specific additional problem with Aadhaar,” he asked Mr Divan.

Replying to the query, Mr Divan said, “The first problem as you have correctly pointed out is centralisation. Normally, you have information silos.”

To this, Justice Chandrachud said they are all tracking location that is common denominator.

“This is where the European Court of Human Rights-ECHR judgement in digital rights judgement comes in. They said, you cannot maintain logs. Why? Because it is one thing if a particular utility provider knows about your location. But what happens with centralisation is you have complete tracking. In the present regime, that allows tracking of IP plus ID. Look at the situation 25 years from now. If we fail in this case, 25 years from now we will be addressing “Aadhaar judges.” Because there is a full log. Right now, it is limited to schools and scholarships. They are planning for airports as well. At this point, you have multiple IDs. Take the PAN card example. You give one ID, you are identified, and avail your benefit. There is satisfaction with respect to the authority, and there is no question of surveillance.”

Elaborating further on surveillance Mr Divan said, “I want to stress that I am not saying that somebody is sitting behind the screen and watching. It is about the architecture of the program and this is why it has never been under proper scrutiny. No other free liberal society in the world has tried this because it simple would not pass the muster.”

To this, Justice Chandrachud said his bank maintains a central repository of all his transactions. He said, “We are constantly entering into a world of surrendering our identity – it may be a choice but it is still a central database. If we are willing to surrender our identity, then does the fact that the State is collecting information make a difference? Would it be satisfactory if there were norms governing collection and use?”

Mr Divan replied, “This is not a question of checks and balances, because the architecture (of Aadhaar) is that of pervasive surveillance. I am alive to the concern that you cannot go back to the pre-digital age, and that is not what I am suggesting.”

He then read out part of the Kesavananda Bharati judgment that says that social and economic revolution has to be achieved consistent with respect for civil and political rights. “Could the Preamble conceive of a State where I am standing there in flesh and blood, with alternative ways of identifying myself, but can be denied my entitlements?” he asked.

Further going back to the privacy judgment on the concept of limited government, the senior counsel read out an elaboration of democracy by the Chief Justice in Manoj Narula vs Union of India case. He also quoted from President Ram Nath Kovind’s speech, where the President had talked about how trust between State and citizen is at the heart of the constitutional governance.

Mr Divan said, “An individual is entitled to develop her personality without being tracked and registered. In a liberal democracy, routine everyday transactions cannot be made conditional on a barter of your biometric information.”

Talking about element of limited government, the senior counsel said, “It is a shared enterprise between the people and the government. Another element of limited government is autonomy and the idea of space – the idea that I can do something without the State necessarily knowing. A final element of limited government is the idea of giving citizens a choice in establishing an identity in both interactions with the State and with private parties.”

“The State has advanced two justifications – giving people an identity, and savings. Both these claims are undermined by the State’s own documents. The Aadhaar enrolment system requires a pre-existing identity, and if you do not have it, then an introducer is required. According to government statistics, the number of people who used the introducer system is 0.03% (a little over 2 lakh). This does not mean that I win my case, but it is important to have the facts on record.”

“Consequently, the question is that can such small numbers justify such a vast an invasive system. We are not saying that identity is not important for the small number who did not have it, but the point is whether it is justified to resort to Aadhaar,” Mr Divan said.

Talking about second justification by the government for Aadhaar, Mr Divan said they said it is for welfare and savings. He said, “There are different type of malpractices. The first is that you fake your data and claim to be eligible when you are not. Second, quantity fraud. Third, identity fraud. Aadhaar can at best only deal with the third type of fraud.”

“The World Bank has estimated a saving of $11 billion per annum. Union of India has relied on this by saying that the World Bank is independent and will not indulge in puffery. In another affidavit the Union of India has used the same figure of $11 billion. Recently Paul Romer resigned from the World Bank citing no integrity in the data. This is one excellent example. There is some dispute over what exactly the pleadings were with respect to the issue of puffery.”

“The claim footnoted a 2011 article, which made no such claims. That article used the $11 billion figure to talk about transfers from five schemes, and talked only about the value of the transfers. Therefore the World Bank claim stands discredited. The figure was the total disbursement. There was no mention of savings. After this was revealed, the World Bank replaces the citation with its own footnote. Maybe the World Bank did not know, but the government official who signed the affidavit surely should have known that this figure is wrong,” Mr Divan said.

Discarding claims made by the government of saving for the MGNREGA scheme, the senior counsel said, the claimed benefits through direct benefit transfer-DBT and Aadhaar savings are Rs11,741 crore. UIDAI records show that the 74 lakh NREGA job cards were seeded with Aadhaar, out of which out 67,000 were found to be bogus. These were all in Tripura. A Lok Sabha question was asked, where the figure given was 63,000. Aadhaar therefore eliminated 63,000. The maximum savings this would yield is Rs127 crore. This is less than 5% of the claimed saving of Rs3,000 crore. In an RTI, questions were asked about the scale of savings and the method but no specific methodology was provided. It was just said that savings are in terms of efficiency and reducing delay. Nothing about fraud. In another year 93,000 job cards were cancelled, but many far reasons other than them being fake. In an RTI reply it was found that the number of cards cancelled for being fake were 1%”

To this, Chief Justice Dipak Misra commented, “Mr Divan’s point is that the margin of exclusion is high and the margin of inclusion is low. His argument is that the larger public interest cannot be invoked to justify the extinction of individualism.”

Mr Divan agreed with the Chief Justice.

Mr Divan then talked about subsidy claims under liquefied petroleum gas (LPG) and concerns raised by Comptroller and auditor general (CAG).

He said, “The LPG linking began as a pilot in 2014. The figures given in UIDAI affidavit is Rs14,000 crore of savings. However, minutes from the Cabinet Secretariat show an annual subsidy saving of Rs91 crore. Compare 14,000 with 91. What happened was that long before Aadhaar, the National Informatics Centre (NIC) came up with a scheme to weed out duplicates. The savings occurred long before Aadhaar. The CAG report is specifically with respect to the implementation of the LPG linking scheme, and the CAG has specifically said that you cannot attribute the savings to the Aadhaar linking, because the savings come from the NIC’s earlier program to weed out duplicates. In fact, the CAG specifically said that part of the savings is because of people not linking Aadhaar. This actually points to exclusion. So what really is the scale of the savings then?”