This is a record of the proceedings in the Supreme Court bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the previous days’ proceedings here: Day 1, Day 2, Day 3, Day 4, Day 5, Day 6, Day 7, Day 8, Day 9, Day 10.
Senior Advocate Gopal Subramanium resumed his arguments for the petitioners by saying the Aadhaar Act is unconstitutional. He said that the Puttaswamy judgment read with NALSA and Subramaniam Swamy (defamation case) judgments made it clear that the Article 21 of the Constitution included dignity within its sweep. A law which impairs dignity is per se unconstitutional.
He asserted that it has been held that when it comes to individual rights versus state concerns, it is the former that has primacy. State action needs to be tested for substantive and procedural reasonableness and there cannot be a waiver of Fundamental Right.
Mr. Subramanium said that Article 14 is not only about nondiscrimination. The Aadhaar Act has no legitimate aim. The legitimacy means that the aim is discernible and the means to achieve that aim is equally discernible. Mr. Subramanium said that the Aadhaar Act suffers from excessive delegation and hence violates Article 14 of the Indian Constitution.
Mr. Subramanium argued that the Aadhaar Act cannot retrospectively validate abrogation of Fundamental Rights, because there cannot be a retrospective validation of actions which violate Fundamental Rights. The means employed in the statute, because biometrics itself is flawed and the algorithmic behavior is itself irrational and beyond UIDAI control.
Theory of potential harm: when overwhelming harm is shown, standards of scrutiny must be much higher and the Act does not stand scrutiny.
He referred to the questions of CJI from the last hearing regarding whether virtual person reduces real personhood and made two observations:
1. Existential identity cannot be judgmentalised by the State. The negation of such identity, even if by an algorithm, may have far reaching consequences.
2. Negation of the existential identity through an algorithmic process without human accountability and no reference to justice is clearly unjust.
Calling justice the queen of all virtues, Mr Subramanium said that inability to access justice is an overarching theme in this Act. He said that the Aadhaar Act made a mockery of federalism with unconstitutional centralisation of power.
Mr. Subramanium referred to the Aadhaar-PAN linking case (Binoy Viswam). He said that the State has 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.
He asserted that in the absence of a data protection law, Aadhaar Act cannot survive. Data Protection Law is based on fairness, information sharing principles. But this Act doesn’t satisfy any of the criteria.
Referring to Justice Chandrachud’s question on a previous day about mobilisation, he said that the Aadhaar Act impairs people from mobilising and constitutes an invasion. He claimed that the ability to negate the personhood not merely causes civil death, but constitutional death. Which should not be possible!
Mr. Subramanium said that the Act’s contemplation of ‘ubiquity’, playing god so to speak, is contrary to a constitutional goal of self-actualisation for everyone (he referred to CJI’s judgment in Subramanian Swamy case). He asserted that rights and existence or entitlement cannot be subject to the vicissitudes of probability. The Constitution guarantees against vicissitudes. Does not enable them!
He stated that Man (meaning person) transcends algorithm. He cannot be enmeshed inside it. Even assuming a benevolent state, it cannot guarantee the benevolence of an algorithm they do not and cannot control and thus the project is architecturally unconstitutional.
He said that the entire authentication is based on algorithms and that an algorithm’s behaviour cannot be predicted even by the State. Pensions, scholarships are important entitlements. Says the facilitation of those entitlements by the State is the important part. Does this Act facilitate those entitlements?
He said that the Aadhaar Act is unconstitutional irrespective of the 50’s and 60s standard ( In Re Delhi Laws Act and Amwar ali Sarkar) or the 70s standard (Cooper and Keshavananda and Menaka) or through modern Puttaswamy standards – this Act fails the reasonableness test when all of the points are looked at cumulatively.
Complimenting Senior Advocate Shyam Divan for establishing the potentiality of surveillance, he said that very possibility restricts the citizen and that it is per se a violation. The State demanding disclosure of status itself is demeaning and contrary to affirmative duties of the State.
Stating that every child is required to get an Aadhaar to get a birth certificate, he claimed that the State is treating people like they are a flock of sheep. (And then remarked that even a flock of sheep requires someone more transcendental to lead! Justice Chandrachud smiled.)
Mr. Subramanium next brought up the Puttaswamy judgment. He said that the golden thread in Articles 14, 19 and 21 of the constitution is dignity, liberty and privacy. He said that the law must be compatible with the golden thread.
Reading out relevant paragraphs from the privacy judgment, on how privacy is relevant in a digital world and how to emphasise the constitutional value of privacy, Mr. Subramanium said that we cannot have discreet silos of human relations, and it cannot be centrally aggregated. He referred to the part of the judgment which talks about privacy being a natural and inherent right.
Mr. Subramanium reminded that the Puttaswamy judgment held that Privacy is concomitant to the right to control personality. 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!
Mr. Subramanium said that the very attempt to homogenise identity is an anathema to the constitution. He said that 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 exclusionary reasons.
Mr. Subramanium claimed that assignment of a number to an individual, identification through a number is completely destructive of dignity. He said that right to privacy is an element of human dignity. Natural rights are not conferred by the State. They exist by virtue of being a human.
He read out the portion of Puttaswamy judgment that reaffirms Justice Lahoti’s judgment in Canara Bank case that emphasises informational privacy in dealing with Canara bank. Even for apriori state interests such as Income Tax or NDPS Act, the Supreme Court had construed such statutes strictly.
Mr. Subramanium asked the bench to consider the consequences of this case.
“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.” claimed Mr. Subramanium. To this, Justice Sikri remarked that the interpretation given by Mr. Subramanium is his improvisation. Mr. Subramanium does not disagree but says he was inferring from all judgments together, right from Anwar Ali Sarkar, all Constitutional principles and virtues are contained in Article 14.
Mr. Subramanium read from the Behram Khurshed Pesikaka vs The State Of Bombay case to show how constitutional rights cannot be waived. He pointed out that consent has little use here (in the case of the Aadhaar Act) particularly when no one can be informed fully of the workings of the algorithm. He gave an eloquent summation of how the very act of dispassionate, mandatory and homogenous identification is destructive of dignity.
Mr. Subramanium then referred to the two German Constitutional Court decisions in Microcensus and Census cases that struck down legislations because of invasion of privacy.
The Bench rose for the day. Hearings to resume on Feb 21, 2018