Aadhaar: Petitioners challenge process of gathering personal info
Compelling citizens to part with personal information to a third party—UIDAI—with whom they had no contractual relations had resulted in compromising their privacy rights, the SC was told
A total of 29 petitions, challenging several aspects of Aadhaar and the use/sharing of data collected by UIDAI, have been tagged by the SC to be heard by the Constitution bench. Photo: HT
New Delhi: Petitioners before a Constitution bench of the Supreme Court set up to hear the case against Aadhaar on Thursday challenged the process of collecting personal and biometric information for the unique identification number programme, and highlighted its implications for privacy.
“Everything about it is patently unconstitutional. It’s a complete invasion -- cannot stand up to minimal standards of scrutiny,” said Shyam Divan, counsel for petitioners, who include leading non-government organizations, privacy campaigners, retired Army officers, Magsaysay award winners and the government of West Bengal.
Compelling citizens to part with personal information to a third party—the Unique Identification Authority of India (UIDAI)—with whom they had no contractual relations had resulted in compromising their privacy rights, Divan told the Constitution bench comprising Chief Justice Dipak Misra and justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan.
The court was then shown for examination the original Aadhaar enrolment form as it existed before the passing of the Aadhaar Act, 2016 when a majority of the people enrolled.
Nowhere in the form, the judges were told, did it state that parting of information was voluntary. There was no mention of biometric information, no provision for verification of information collected, or any kind of counselling to tell citizens of the advantages, reasons and shortcoming of the enrolment.
At this, Chandrachud intervened: “Even when you apply for an insurance policy or a mobile connection, the private insurance agent or the mobile service provider requires identity proof. So, why is there an issue with parting with the same to the government?”
Divan explained that the problem did not lie with parting of personal information, but with the fact that the information was being given to third parties that could use it for commercial purposes.
“As long as its backed by a statute, I don’t see a problem. Take for instance the collection of information under the Census Act, 1948 where demographic data is collected by the state,” Divan said.
He also drew the top court’s attention to the privacy judgment that grounds privacy in ideas of dignity, autonomy, and identity, which pervade the entire Constitution.
On Wednesday, Divan had warned that if the programme is allowed to operate unimpeded, it would hollow out the Constitution. A people’s Constitution would turn into a state Constitution because of the mass surveillance it would entrench, he said.
The Constitution bench was formed in December to hear arguments on the constitutional validity of the 12-digit biometric identification number that is assigned by the UIDAI. Aadhaar has now become the bedrock of government welfare programmes, the tax administration network and online financial transactions.
A total of 29 petitions have been tagged by the Supreme Court to be heard by the Constitution bench. They challenge several aspects of Aadhaar and the use/sharing of data collected by UIDAI.
Petitioners have challenged making Aadhaar mandatory for availing of social welfare benefits and filing of income tax returns (ITRs) as well as for obtaining and retaining the Permanent Account Number (PAN) required for filing ITRs. They have also cited the potential for infringement of an individual’s right to privacy.
In a path-breaking ruling on 24 August 2017, the apex court held that privacy is a fundamental right. In the process, it set the stage for the introduction of a privacy law; the government has appointed an expert group under former Supreme Court judge B.N. Srikrishna to make recommendations.
The hearing continues on 23 January.
