Is there anything wrong in using Aadhaar to increase the efficiency of government welfare schemes? That was the substance of questions posed by two judges, including the Chief Justice of India (CJI) on Wednesday as a Constitution Bench of the Supreme Court began hearing pleas against Aadhaar in one of the most keenly watched cases of recent times.
To be sure, the questions were more in the nature of observations, and these do not necessarily have any bearing on the judgement itself, although they do reflect the line of thinking on the bench.
The petitioners opposing Aadhaar said the National Democratic Alliance’s government’s ambitious biometric-driven “project sought to tether every resident of India to an electronic leash.”
“The State may say all we are trying to do is ensure that money is going where it ought to. If you are depending on social welfare benefits, equally states have countervailing interests to ensure that they reach the right people,” Justice DY Chandrachud said.
The Constitution Bench is hearing 28 petitions challenging Aadhaar’s legal validity. These include challenges to various administrative orders that make linking of the 12-digit unique identity number to government services mandatory and also statutes such as the Income-Tax that make it compulsory to link the Aadhaar number to the PAN (permanent account number) issued by the tax department. The bench will also address the larger question of whether Aadhaar infringes on the right to privacy. A plea to this effect led to a larger debate on the right to privacy itself that was settled in July last year with a nine-judge bench of the Supreme Court maintaining that the right to privacy is a fundamental right.
Interestingly, even that judgement had a provision to allow the state to collect information so as to improve the performance of its social welfare schemes.
On Wednesday, Justice Chandrachud posed the query to senior advocate Shyam Divan who opened the arguments for the petitioners, including social activists such as Aruna Roy, Shanta Sinha and retired Karnataka High Court judge Justice K Puttuswamy.
Divan argued that Aadhaar “alters the relationship between the citizen and the State”, while diminishing the status of the citizen. All rights, he said, have now been made conditional on a “compulsory barter”, arguing. “The barter compels the citizen to give up her biometrics ‘voluntarily’, allow her biometrics and demographic information to be stored by the State and private operators and then used for a process termed ‘authentication,” he said.
CJI Dipak Misra echoed Justice Chandrachud and said: “Article 21 confers fundamental rights that include right to education. They (government) may say that it (collection of biometrics) is being done for the purpose of ensuring that teachers and students come to school.”
Divan answered that the petitioners had a problem with the “central registry which stores the data”.
Aadhaar raises several questions including “whether the Constitution of India authorises creation of a surveillance state and whether the vulnerability of the database threatened national security”, Divan argued.
The architecture of the unique identity was such that “throughout the day, there will be an electronic trail of movements and it is left with the Central government,” he explained: “Why should central government know my movements.” Divan added that such an architecture is “unconstitutional” and could create a “surveillance society.”