On day 9 (Thursday, February 8), Senior advocate Kapil Sibal resumed arguments on behalf of the petitioners.
Referring to a news report about Aadhaar being made mandatory to avail old age pensions, Mr. Sibal argued that the absence of infrastructure like electricity or Internet connection excludes individuals from claiming benefits and entitlements. When Justice Chandrachud pointed out that infrastructure will have to be upgraded if it is leading to exclusion, Mr. Sibal answered that exclusion caused during upgradations is also significant.
Advocate Rakesh Dwivedi appearing for the respondents intervened at this point to assert that no one was being excluded due to infrastructure. He said the Aadhaar Act and Rules make adequate provisions for accepting alternate means when Aadhaar is infeasible due to infrastructural issues. Individuals can simply show their Aadhaar card and number, for instance. Additional Solicitor General Tushar Mehta read out a cabinet release in support of this contention, and said that there have been no exclusions at any stage – enrolment or authentication. He added that offline modes of authentication will be available during connectivity problems and that further alternatives are also available in exceptional cases.
Justice Sikri observed that many illiterate or otherwise underprivileged residents might be unaware of options like updating biometrics. Though the ASG assured the Bench that the respondents had taken measures to prevent this, Mr. Sibal argued that these are very serious problems on the ground that cannot be understood by reading the statute. He also said that the respondents had incorrectly interpreted provisions of the Act when stating that infrastructure is a non-issue.
On alternative means of authentication, Justice Chandrachud observed that Section 7 of the Aadhaar Act could be interpreted to concern three things: authentication, proof of possession or proof of application. He noted further that presenting one’s Aadhaar card would be a valid alternative to the routine authentication process under the Section. The Bench noted that this is relevant in determining issues around exclusion.
Mr. Sibal then spoke about the UK’s scrapped biometric ID program, and how it fundamentally changed the relationship between state and citizens. He read out comments from Theresa May (then Secretary of State for Home Department), who called the biometric initiative intrusive and ineffective. Ms. May was also quoted expressing concerns over data breaches and stating that the biometric ID cards would not make people any safer as claimed. UK’s experience was then used to draw a parallel with India, and Mr. Sibal argued that Aadhaar is effectively putting residents and their data at risk. He also referred to the US’ social security number scheme, which addresses many of the same governance needs as Aadhaar without relying on biometrics or ID cards.
Mr. Sibal pointed out that Aadhaar has become much more than an identity program today – an “identity plus” where the “plus” includes metadata gathering and monitoring. Sections 3, 4, 8 and 57, rather than Section 7 of the Act are the key provisions to be considered, said Mr. Sibal. What Section 7 seeks to do could have been done just as well under the Food Security Act, which means the real intent of the Aadhaar Act is to bring every other service under its ambit. The fact that “identity” is less important than “status” when it comes to benefits, as well as the fact that all other forms of ID proof are being discarded in favor of Aadhaar, further illustrate this.
Speaking on identity within the Constitutional framework, Justice Chandrachud observed that the Indian Constitution envisages identity in multiple ways such as gender, religion and so on. Mr. Sibal added that Aadhaar infringes Article 21 of the Constitution as it denies individuals the right to establish their identities in multiple ways as is Constitutionally permissible. He drew attention once again to Israel, which offers a voluntary ID program for citizens to claim services.
This concluded arguments for the day. Next date of hearing is Tuesday, February 13.
