Privatisation of collection of Aadhaar data still persists even after the legislation, says Shyam Divan

The hearing on the constitutional validity of Aadhaar resumed on Tuesday (January 23). Shyam Divan appearing for one of the appellants stated several judgments in respect of importance of human dignity in privacy right.

The Supreme Court constitution bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, Adarsh Kumar Sikri, D Y Chandrachud and Ashok Bhushan was apprised by Divanthat privacy should be protected against the state and all the non-state entities.

Here are the arguments:       

1.21 pm: Shyam Divan says: “Fundamental right of privacy is always protected by the Supreme Court. Privacy is necessary condition for enjoyment of life. Sanctity of privacy lies in human dignity that cannot be ignored. While summarizing the privacy judgment, Divan says right to privacy is a natural right.

2.59 pm: While reading the statute, Shyam Divan draws attention to “requesting entity”, further he suggests that such entity might be private party or government body. He asserts that the provisions are broadly open ended. Privatisation of collection of data still persists even after the legislation.

Shyam Divan reads the definition of registrar from the Act and brings to the notice that such registrar may or may be a government body authorised by the government for the sole purpose of enrolment.

“Electronic mess is been created,” reiterates Divan. Every resident shall be entitled to get an Aadhaar number, as according to the statue and emphasises that the way it is drafted it seems a right not a compulsion.

One is entitled not obligated, as the statute speaks. Anyone from outside India can take advantage by making Aadhaar. 49000 enrollers’ licenses have been cancelled so no integrity of the data. How compromised the enrolment process is, self verification by the individual, enroller is a private party. Several were even cancelled.

3.34 pm: Biometric data of individual also changes over a period of time. Alternative medium should be there to provide subsidy to the people and other benefits, submits Divan.

“Aadhaar number is just an authentication but not proof of Citizenship. This is not a proof of residence/citizenship/domicile, as per the statute. Passport office has started taking it as residence proof,” submits Divan.

He answers to the question to Justice Chandrachud who poses that there are irregularities in the statue but it is (Aadhaar) not unconstitutional: “Vulnerability of database accessible to third foreign party, the developers. The amount of control this programme will have is unconstitutional and the statue validating the process is unconditional.”

Shyam further adds: “Democracy entails choice. One should be given choices to the mode he wants to be identified by; you cannot impose something on someone. One might obtain an Aadhaar but not use for his identification. Machinery is nothing but a surveillance state.”

Justice Chandrachud questions: “Even in the absence of Aadhaar your private information is been tracked by private entities.”

3:50 pm: If someone is saying he’ll protect the data he is lying, answers Divan.

Kapil Sibal appearing for one of the appellants says: “Sharing of data is the need of today’s networking world but to what extent that has to be considered.”

He further adds: “Architecture provides a scope to track an individual all the time till the time he dies and such structure scares me, one might not be doing it but it gives a scope. It should be kept for the purpose it was introduced such as subsidiaries, scholarships etc.”

Divan submits: “It is the duty of the state to protect all from private entities. Aadhaar cannot be used for all the purposes as there are also chances of hacking etc.

Differentiating private party gathering your data and state gathering your data, Divan submits that it’s a duty of state to protect its citizens against such private party as also laid in the privacy judgment. But what happens when the state becomes excessively powerful. At the time of emergency in the state, rights of individual can be a security peril, submits Divan.

The bench adjourned the matter for tomorrow.

—India Legal Bureau