- AUTHOR: Naazish Fatima
- POSTED: March 21, 2018
- TAGS: Aadhaar, Aadhaar Hearing, Attorney General, Supreme Court
Aadhaar Hearing Day 20: Aadhaar is not a fly-by-night
Attorney General began the case for the Union by saying that there are many technical aspects in this case involving security, storage of information, steps taken to prevent leakages etc. He stated that an enormous effort have been put in to ensure security. “There have been sixty committees since 2006″AG claimed. He stated that these committees had also examined alternatives like smart card. He argued that Aadhaar is not a fly-by-night scheme, but a serious effort to insulate deserving beneficiaries from the effects of corruption.
“Many countries have adopted a unique identification system. The World Bank has looked into every aspect in a report called Identification for Development. The World Bank has referred to Aadhaar as well in that report. We will explain how security is protected at every step from enrolment to CIDR. The CEO of UIDAI has prepared a power point presentation and he can also explain it to the Court.” Attroney General explained before the bench. He read out the qualifications of the CEO of UIDAI and told before the bench that the CEO could make a technical presentation tomorrow afternoon at 2 30pm.
To which CJI remarked, “first you make the legal contentions.”CJI stated that the petitioners have argued on privacy, anonymity, dignity, surveillance, aggregation, presumptive criminality, unconstitutional conditions, absence of a law, security. He asked the AG to respond to those.
AG replied that many doubts and fears that had been raised would be clarified by the presentation. He said that there was also a four minute video showing the thirteen foot wall around the CIDR. Chandrachud J responded that the petitioners had also begun with a factual superstructure, so the AG’s request might be a fair one.
Moving ahead the AG argued that the core effort of the Aadhaar Act is to protect the huge amounts of money spent to bridge the gap between rich and poor. “When the British left, poverty was 66% and illiteracy was 87% . Now both are down to 27% But in absolute terms it is higher. The money being diverted is more than 1000 crore. Middleman and public servants are diverting funds. Corruption is massive. Even China is less corrupt than us according to Privacy International. So something had to be done. The Act was framed to take into account every fear, and have the least possible invasion of privacy.” AG alleged. He stated that under the architecture of the Act, the invasion of privacy is at the lowest possible level.
“Before the Act, the Court had ordered that Aadhaar be voluntary. So there should be no question of fundamental rights violations. If it was voluntary, how could there be violation? The Indian SC has said that the right to life is not a right to a mere animal existence, but a right to live with dignity.” Ag yet again argued.
Sikri J remarked that it was an interesting question when two rights clash – such as right to privacy and right to life. He added that in this case both sides are invoking the right to dignity. CJI interrupted saying that the AG’s argument seemed to be that the individual right to privacy must give way to the right to distributive justice. AG responded by saying that in this country, if you are poor, you become invisible.
“This argument must be dealt with in the context of exclusion” Sikri J said. To which AG said that lots of NGOs have said there is exclusion, but the Court hadn’t heard from any affected person. Chandrachud J yet again intervened saying that it cannot be said that individual rights are subordinate to distributive justice. He then gave the example of the Bengal Famine. After which some discussion between the AG and the Bench took place on the causes of the Bengal famine.
Coming back to the case AG questioned about the fundamental Rights of poor people to exist without hunger and lying on the pavement would prevail over the right to privacy. Bhushan J responded by saying that the poor have an equal right to privacy. Their rights can’t be violated any more than the rights of the rich. AG argued that this was a question of balancing rights and not a question of violation. He repeated the point that there can be no question of violation of fundamental rights before 2016, because it was voluntary.
Chandrachud J said that it was not so simple. “When people agreed to obtain Aadhaar, they did not accept a surrender of their data, or commercialisation. Besides, the safeguards of the Act didn’t exist back then. “ he pondered. AG replied that the poor people who were the beneficiaries between 2009 and 2016 have not complained. Hearing this Sikri commented that it was not limited to that class – that is, the class of section 7 beneficiaries.
AG argued that as far as bank accounts, income tax and phones were concerned, one would deal with them separately. AG repeated that the fundamental question in this case was one of balancing. He stated that Aadhaar was an enabler for millions of residents. It enabled their right to food, livelihood and pensions.
“ A handful of petitioners want it to be struck down on grounds of privacy. Object of the Act is targeted delivery for genuine beneficiaries. It furthers the Article 21 right of the poor people of India, and advances the Directive Principles.”the AG alleged. He then read out the statement of objects and reasons of the Aadhaar Act.
Moving further AG read out various reports on inclusiveness and the right to food. He referred to the SC’s PUCL right to food case, which had made specific references to the DP Wadhwa Report, and recommending computerisation of PDS. He also read out the extract from the PDS judgment that asked Nandan Nilekani to suggest ways of computerising the PDS. AG stated that Nilekani had conceptualised the UIDAI. He referred to the part of the PUCL judgment approving issuance of Aadhaar and linking to PDS.
Thereafter the bench rose for lunch and resumed hearing at 2 30pm.
AG continued the case for the Union. He stated that Section 12 of the National Food Security Act envisages the use of Aadhaar for better targeting and computerisation, and for unique identification.AG read out the SC’s judgment on Aadhaar/PAN (from last June), and argued that in that case, the objectives of Aadhaar had been endorsed by a bench of Justices Sikri and Bhushan. H referred to the part of the Aadhaar/PAN judgment that cited Jean Dreze and Amartya Sen on the need of sustainable development. And further read out the part of the Aadhaar/PAN judgment that spoke about ghosts in the system, and cited Rajeev Gandhi’s aphorism that out of 100 rupees of welfare, only 15 reach the intended beneficiary. He then explained before the Court,the part of the Aadhaar/PAN judgment that spoke about cracking down on black money and money laundering, and the problem of multiple PAN numbers, and the benefits of centralised systems like the UIDAI to combat this, as well as combat terrorism and also the part of the Aadhaar/PAN judgment that says that Aadhaar is the most robust way to achieve deduplication. AG pointed towards the part of the Aadhaar/PAN judgment that rejected the Article 14 challenge.
Sikri J questioned as to how pensions fall within section 7 of the Aadhaar Act, since pension is a right. To which AG responded that there are fake pension cards. Sikri J remarked that this becomes relevant in the context of exclusion. AG yet again repeated that nobody who has been excluded has come to the Court. Chandrachud J intervened and said that some of the rough edges of the Law may need to be softened, to avoid exclusion. AG stated that they could deal with a specific case if someone complains, but nobody had complained.He cited a World Bank Report saying they UID should be universal and everybody should have it. Chandrachud J asked as to how “subsidies, benefits and services” should be understood.
AG argued that poverty was a violation of human rights He cited Roosevelt, Nelson Mandela and the UN. “On one side you have the human rights of 300 million poor people. On the other side you have a state of mind. This Court can see where the balance lies” AG alleged. He further stated that there are mechanisms under the regulations to ensure seamless delivery of benefits. “Until the point an individual gets an Aadhaar, he is allowed to use alternative forms of ID. If biometric fails, then an individual shall be given the benefit on showing Aadhaar no.” he alleged. He then read out various other handling mechanisms such as doorstep delivery and notifications from the Ministry of Food. He argued that this was an ongoing process
“After the World Bank Report, there cannot be a second thought about the benefits of Aadhaar” AG claimed. He handed over the report titled Identification for Development and then read out the Foreword of the World Bank Report which said that official identification is more than a convenience, it is a fundamental human right. He also read out the part of the World Bank Report that says that a lack of identification specifically affects women and children adversely. He referred to the part of the Report that talks about delivery of services to the poor and making everyone count by delivering an identity.”The World Bank has stated that this would help development and that it should be a universal.” AG alleged.
Sikri J enquired,”if your only goal is identification, what is the need for centralisation and aggregation? “ He questioned as to whether this was proportionate or not and took the example of Singapore, where the data remains on the card. AG however told the bench that all this would be explained by the CEO of UIDAI in his presentation tomorrow. AG claimed that aggregation was not possible with Aadhaar and that the CIDR does not have the purpose of the transaction.
Further some discussion on the presentation to be made by the CEO took place. CJI told the AG that first the presentation be given to the bench in word format.
However Advocate KV Viswanathan on behalf of the petitioners argued that if there will be a presentation, then there must be a right to cross examination by the Petitioners To which Chandrachud J said that there could not be a freewheeling cross examination. Questions could only be placed through the CJI and further all this would be decided tomorrow.
Thereafter the Bench rose for the day. Hearing to continue tomorrow at 11 30 am.
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