On the 12th Day of the Aadhaar Hearing, Senior Advocate Gopal Subramanium resumed his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. On the day before, he had argued that identification of citizen through a number was completely destructive of dignity. He said:
“State is treating people like they are a flock of sheep. Even a flock of sheep requires someone more transcendental to lead.”
Below are the highlights from Gopal Subramanium’s arguments on Day 12 of the hearing:
- Constitutional value of human dignity:
- To live is to live with dignity. (Refers to the case of Subramanian Swamy which talks about the concept of reputation as a natural right- a facet of dignity)
- Lack of authentication has led to deprivation which has led to debt. It is an accountable State architecture. The insignia is some kind of probity and rectitude which should be assured.
- I agree that people should have a political identity. However, there are two expressions- ‘identity’ & ‘identification’ and it is the former which has constitutional relevance. Minimal, regulatory identification is fine but identification for availing rights is not.
- State has a duty to be citizen friendly.
- Aadhaar Act, 2016 has an element of objectification. It depersonalises an individual. It eliminates any form of transaction except through the medium of this Act.
- Unique identity cannot be given by a number. Identity is as natural as the life itself. State is obliged under Article 13 to respect the rights of the individuals.
- State cannot use this present mechanism to find out the ghost people. State needs to have a better mechanism which make it accountable and follows due procedure.
- Opacity is antagonistic to rationality. The law must be able to rationalize its objectives.
- Informational privacy:
- The statute itself gives evidence that there is an aggregation of data including the metadata.
- (Chandrachud, J asks to read para 309 of the privacy judgment which talks about monitoring web for national security.) It is different. It talks about monitoring of web not aggregation. In case of aggregation of data, if somebody hacks into the database, what will become of the individuals.
- Section 59 of Aadhaar Act, 2016:
- The expression ‘by law’ under Section 59 of the Aadhaar Act means law in present time and not retrospection.
- If there’s an invasion of fundamental rights, what is without the authority of law cannot be deemed to have been done under the authority of law.
- Interface of accountability takes place at the lowest level, state and then union level. Says Aadhaar violates the federal nature. (Refers to proviso to Article 73(1) of the Constitution. Enlists the entries in the concurrent list concerning Aadhaar)
- To examine Section 59, two points will have to be considered i.e. absence of law and invasion of rights.
- A law cannot subsequently cure the invasion of rights. De-facto and de-jure invasion has taken place here. It is complete. And in such a case, a law cannot retrospectively cure such actions.
- Chandrachud, J: In context of section 57 that whether, prior to 2016, State govt. also utilised Aadhaar?
- Gopal Subramanium: State govts. entered into MoUs to establish State Resident Data Hubs.
- Why should the beneficiaries of the schemes beg the State to get their entitlements?
- The heart and soul of this Act is authentication. If authentication fails, consequence is disablement. In such a case, there’s no form of substantive or procedural redressal.
- This Act doesn’t even provide for retrieval of core biometric information. To compensate it gives provision of update. But how will an individual come to know that his biometrics need updation?