Supreme Court: The much awaited Aadhaar hearing began today before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, and below are the highlights from Day 1 of the hearing:

Arguments advanced by Senior Advocate Shyam Divan, appearing for petitioners:

  • Aadhaar Project and the Aadhaar Act, 2016, are being challenged separately as the statute covers part of the project, but not all of it.
  • Inalienable and natural rights have been made dependent upon compulsorily acqiring an Aadhaar number.
  • If the Aadhaar Act is upheld, then in the alternative, no citizen should be deprived of any right or benefit for the lack of an Aadhaar card.
  • In 2012, many citizens filed PILs against the Aadhaar scheme. In 2013, a two judge bench referred the matter for final hearing, and made it clear that nobody should suffer from lack of an Aadhaar card. In 2014, UIDAI itself filed a petition against a Bombay HC order that had directed it to disclose biometrics in a criminal case.
  • In the privacy hearing, the State said that these are all elitist concerns. They are not. There are genuine, weighty issues.
  • UIDAI captures all the ten fingerprints of the individual, a facial photograph, and the two irises. They have a template. The template scales the fingerprints. They then pick up, say, hundred distinctive points, called minutae. The UIDAI then sets a number – how many of those hundred points should match? If the number is set at 100/100, it will never work. So UIDAI has to make a value judgment. It can’t be too high, it can’t be too low. So you’re departing from a deterministic system to a probabilistic system. If I have certain rights, then how can my enjoyment of those rights be made probabilistic? (On how the Aadhaar System works)
  • It will become clear as this case goes on that there is almost negligible governmental oversight over this data. In the pre-Act era, there was no mention of biometrics in the legal instruments that governed Aadhaar. Biometric collection was patently illegal, and that illegality was not cured by the passing of the Aadhaar Act.
  • While border control may take your biometrics, it is restricted to that. You’re not required to submit your fingerprints for various transactions throughout the day. (On distinction between pervasive and non-pervasive system authentication system)
  • While at one point UIDAI projected that the purpose of Aadhaar was to give everyone an identity, RTI revealed that the actual number of people for whom Aadhaar was the first ID, was very small.

Background of the ongoing Aadhaar hearing:

The 5-judge bench has sat together for the final hearing of the Aadhaar matter after the 9-judge bench declared right to Privacy as a Fundamental Right. The said Privacy issue that arose during the Aadhaar hearing when the 5-judge bench of J.S. Khehar, Former CJ and J Chelameswar, SA Bobde, DY Chandrachud & S.A. Nazeer, JJ said that in the light of the rulings by the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., holding that Right to Privacy is not a fundamental right, a larger bench needs to determine whether right to privacy is a fundamental right or not, before deciding the validity of the Aadhaar Scheme.

Earlier, a 3-judge bench in K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735 had referred the Aadhaar matter to a larger bench while stating that if the MP Sharma and Kharak Singh cases “are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

On 14.12.2017, the bench had, upon request made by Senior Advocate Shyam Divan, agreed to hear the matter for interim relief after he told the Court that no person should suffer for not having an Aadhaar card, till the case is heard and decided. As a result, on 15.12.2017, the deadline for linking Aadhaar with all the schemes and existing bank accounts was extended from 31st December, 2017 to 31st March 2018. The bench had also clarified that clarified that as far as the provisions of Section 139 AA of the Income Tax Act, 1961 are concerned, the matter stands governed by the judgment of this Court in Binoy Visman v. Union of India2017 SCC OnLine SC 647.


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