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The Supreme Court Constitution Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, hearing Aadhaar and related linkages issue (petitions saying that it was unconstitutional), was told by Attorney general K K Venugopal on Wednesday(April 4) that there has been no data leakage from the Aadhaar data bank as alleged.
Venugopal continued his submissions, by saying that enormous efforts have been put in, in establishing a safe place where all the data is protected. “It is upon the judiciary to decide whether a particular scheme is beneficial to the public or not, on the basis of rationality and the concept of proportionality. It must have minimal invasion to the privacy.
“And hence,” he said, “the judicial review and judicial activism would actively be involved.
However, on questions that proportionality should not infringe on the ambit of article 21 of the constitution, Justice Bhushan said that the policies are not targeted once the rules, regulations and laws come into picture.
Venugopal said: “The main issue is with respect to data protection. The entire technology is involved. We entirely deny data leakage. The system is entirely unbreakable and we’re still improving for the advancement of the technology and protection of the information of every individual. The virtual 16-digit number is not permanent.
Justice Chandrachud said: “It’s more like masking the Aadhaar number.”
Justice Khanwilkar said: “More like generating a one-time password, where for every transfer, the individual can change the virtual id, without fearing that their information will be in the public domain.”
He referred to a 2000 judgment (2000 10 SCC 669). He said: “Now, if the nexus is not established, the principle of proportionality is not satisfied.”
Venugopal said that in the case of public projects, “it shall not be in the interest of the judiciary to look into matter if no prima facie case is established that the policy per se is malafide in nature or is not of public interest merely because someone filed a PIL.”
He further defined what biometrics is: fingerprints, etc., anything that has the fundamental information of an individual. In his biological attributes. “We leave it to the administrative authorities as to which biological attributes to be attached,” he said.
Justice Khanwilkar pointed out regulation 16, stating that the biometrics mentioned under the act is very limited and other biological attributes can be added accordingly. He mentioned section 55 of the Act which talks about laying of the rules and regulations before parliament.
Venugopal said: “We are leaving it on the regulation making authority to decide what biometrics to be taken for identity authentication and the manner in which it shall be taken.”
At this Justice Chandrachud asked: “This gives immense power to the authority. Does it substantiate the principle of proportionality? Isn’t it excessive delegation? Regulation takes effect immediately as it gets approval. However, in this case, the regulation ceases to exist immediately once disapproved by parliament.”
Venugopal answered: “This is not a case g excessive delegation as the number of biometrics taken is limited.”
He referred to Wikipedia, wherein every information is up on the internet.
Justice Bhushan said: “Like all the assets of an individual is up on the internet, as per the declaration scheme.”
Venugopal mentions the World Bank report and submits India’s statement. “No stigma is attached to the process, no privacy infringement,” he said.
“Fingerprinting of an individual marks the presence or non presence of an individual. The onset fingerprinting and biometrics check does not violate the fundamental right,” he said.
Justice Chandrachud said: “Mr (Shyam) Divan didn’t emphasise on the fingerprinting per se. Large states have approximately 50 percent of subsidies. For this, only one identity must be used because for such subsidies, lot of funds are transferred.”
Justice Chandrachud asked Venugopal to talk about the non-section 7 situations. The Attorney General denied that fingerprints can be used for surveillance. He further said that they provide a simple means for identification.”
He emphasized that no government in the last seven years has conducted surveillance and there is no record of the same. He said that fingerprinting is no more considered a stigma and used for various purposes. He gave examples of fingerprints of US government employees being collected.
He referred to a judgment which talks about the possibilities of information that can be passed.
Justice Sikri asked in this case, should we “at all” look into the foreign judgments? This he said when Venugopal mentioned the Whalen vs Roe case wherein SCOTUS said that the state need not show that state action was necessary to solve a particular problem and there’s no reason for assuming that state security provisions would be improperly administered. Social security number will be at par with the PAN card number.
—India Legal Bureau