What happened in the Supreme Court on Tuesday as the judges heard a public interest litigation that challenged the constitutional validity of Aadhaar?

BS Post : 88 Date : 29.11.2013,  Place : Mumbai, By : Mohammed Chand Shaikh.

On Tuesday, the Supreme Court issued notices to state governments to explain their stance on making the unique identity (UID) number, Aadhaar compulsory.

Hearing a public interest litigation (PIL) that challenged the constitutional validity of Aadhaar number being issued by Unique Identification Authority of India (UIDAI), the apex court opined that it would not want to be in a situation where a state government would later plead that they were not given an opportunity to be heard.

Shyam Divan, the counsel for Maj Gen (retd) SG Vombatkere, cited example of several States which made Aadhaar mandatory for availing of host of services. For instance, he said in Kerala and Himachal Pradesh, admissions to school required students to have Aadhaar. Maharashtra recently made Aadhaar compulsory for government employees to draw their salary and pay slips. Madhya Pradesh followed the Centre’s diktat to make Aadhaar mandatory for receiving pension and provident fund benefits in three districts while Himachal Pradesh linked the Aadhaar scheme to offer scholarships in universities.

The bench of Justices BS Chauhan and SA Bobde was initially of the view that the petitioners are only bothered by the government making UID compulsory. So, the Bench asked Divan, “If we order that it cannot make it mandatory, would you have a case?”

Divan replied that the issues are deeper and he needs time to explain the whole scheme. The Aadhaar project, the senior advocate said, was ultra vires as it did not have a statutory backing. Moreover, no statutory guidance exists on crucial questions such as—who can collect biometric information, how it is to be collected and stored, protection of collected data, who can use the data and when it must be used.

The Supreme Court then asked, “Would you have a case if Parliament passes a law giving UID legal status?” Divan replied that even if  the Constitution is amended, UID would be illegal.

Divan then took the court through the flow chart of how UID enrolments are done, the kind of  Private Companies are involved and the dangers of the scheme. He pointed out how UIDAI signed memorandum of understanding with States which had no legal sanctity. He said, State appoints registrars, who could even be a private person, who engaged private companies to collect biometric data. There is also the fear that the private party which collects the data then stores it in a personal laptop, which does not belong to the government.

The counsel for Maj Gen (retd) Vombatkere, then briefly mentioned some abuses which could be carried out using UID.

He brought out how if a password of an ATM card was compromised, the cardholder could change the password, but if one's fingerprints or iris (biometrics) are the passwords, then the person whose password is compromised has no remedy. The court wanted to know the definition of biometrics in UID and spent some time studying it.

He also told the apex court about how UID changes the relationship between the state and the citizen. Convicted criminals relinquish some privacy rights. They have their fingerprints taken for record. Here the government is treating all people as criminals. One of the judges on the bench was very interested in this line of argument and asked many probing questions.

Interestingly, neither the UIDAI nor union government have filed any counter to the PIL. They have not denied any of the allegations made in the petition by Maj Gen (retd) Vombatkere and Col (retd) Matthew Thomas.