The five-judge Constitutional bench headed by Chief Justice Dipak Misra, comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan on Wednesday resumed hearing in the Aadhaar case.
Attorney General KK Venugopal, started his submission with reading qualifications of chief executive of Unique Identification Authority of India (UIDAI) and insistence upon the Court to see a technical presentation by its Chief Executive (CEO) Ajay Bhushan Pandey. “We will explain how security is protected at every step from enrolment to Central ID Repository (CIDR). The CEO of UIDAI has prepared a power point presentation and he can also explain it to the Court,” Mr Venugopal said.
Chief Justice Misra however told the AG to first make his legal contentions. “(The) petitioners have argued on privacy, anonymity, dignity, surveillance, aggregation, presumptive criminality, unconstitutional conditions, absence of a law, security. And the AG should respond to those,” the Chief Justice said.
The AG then stated, “Many doubts and fears that have been raised (by the petitioners) will be clarified by the presentation (from the UIDAI CEO). There is also a four minute video showing the thirteen foot wall around the CIDR.”
Justice Chandrachud pointed out that the petitioners have also began with a factual superstructure and hence the request from the AG might be fair one. Chief Justice Misra, however, told Mr Venugopal to begin his contention.
In his response, the AG contented that core effort of the Aadhaar Act is to protect 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 was more than Rs1,000 crore. Middleman and public servants were diverting funds. Corruption was massive. The Aadhaar Act was framed to take into account every fear, and have the least possible invasion of privacy.”
“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 SC had said that the right to life is not a right to a mere animal existence, but a right to live with dignity,” Mr Venugopal said.
Observing this contention as ‘interesting point where two rights, the right to privacy and right to life, clash’, Justice Sikri noted that in this case, both sides are invoking the right to dignity.
Chief Justice Misra commented that the AG’s argument seems to be that the individual right to privacy must give way to the right to distributive justice.
AG Venugopal said that in this country, if you are poor, you become invisible.
Justice Sikri said that this argument (from the AG) must be dealt with in the context of exclusion.
“Lots of non-governmental organisation (NGOs) have said that there is exclusion, but the Court had not heard from any affected person,” the AG said.
Justice Chandrachud, citing an example of Bengal Famine, said, “It cannot be said that individual rights are subordinate to distributive justice.”
Resuming his contentions, Mr Venugopal wanted to know if fundamental rights of poor people to exist without hunger and lying on pavements would prevail over the right to privacy.
Justice Bhushan said that poor too have an equal right to privacy. “Their rights cannot be violated any more than the rights of the rich,” he said.
AG Venugopal contended that this was a question of balancing rights and not a question of violation. Repeating his points, the AG said, there can be no question of violation of fundamental rights before 2016 since Aadhaar was voluntary.
Intervening, Justice Chandrachud pointed out that this is not so simple. He said, “When people agreed to obtain Aadhaar, they did not accept a surrender of their data, or commercialisation. Besides, the safeguards of the Aadhaar Act did not exist back then.”
The AG says poor people who were the beneficiaries between 2009 and 2016 have not complained. “Aadhaar is an enabler for millions of residents. It enables 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,” he said.
Reading out from a report, “Identification for Development’, from the World Bank, the AG said that official identification is more than a convenience and it is a fundamental human right. He says, “The World Bank Report says that a lack of identification specifically affects women and children adversely. Delivery of services to the poor and making everyone count would be by delivering an identity and the Work Bank stated that this would help development and it should be universal.”
Justice Sikri asked if that was the only goa, what was the need for centralisation and aggregation and whether this was proportionate. He also cited an example of Singapore, where the data remains on the card.
Responding to this, AG Venugopal said, “This will be explained by the CEO of UIDAI in his presentation tomorrow. Aggregation is not possible with Aadhaar. The CIDR does not have the purpose of the transaction.”
There was some discussion about the presentation to be made by CEO of UIDAI. Chief Justice Misra told AG Venugopal to submit the presentation on word format.
Senior counsel KV Vishwanathan said if there is a presentation, the there must be a right to cross-examination by the petitioners.
Justice Chandrachud said that there cannot be a freewheeling cross examinations and questions can be placed through the Chief Justice.
Both the issues of presentation and cross examination would be decided by the Bench on Thursday, when the hearing resumes.
(Based on live tweets of @gautambhatia88, who is representing one of the petitioners)
