#Aadhaar is increasing coercive power of the State against individuals, Shyam Divan tells the SC
"Our constitution starts with 'We, the People of India', which suggest choice and democracy for the citizens. Does Aadhaar survive these first five words from the Constitution of India?" asks Senior Counsel Shyam Divan.
Continuing with his rejoinder before the five Judge Constitution Bench, the Senior Counsel contended that if you look at Aadhaar as a whole, it is increasing the coercive power of the State against the individual.
The Bench comprising Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan on Tuesday resumed hearing in the Aadhaar case.
Earlier during his contention, Attorney General KK Venugopal has extensively cited a report, "Identification for Development' from the World Bank. In the rejoinder, Mr Divan exposed the links between people who are behind the Report and Aadhaar scheme.
Talking about Section 59 of the Aadhaar Act, Mr Divan contended that this attempts to validate all action before the Act was passed.
He says, "Even if this is a successful validating clause, it cannot validate actions not done by the central government, and cannot validate actions that were even ultra vires the notification. The notification made no mention of biometrics. So biometric collection before the Act cannot be validated."
"Even if the notification was a Parliamentary statute, unless it specifically mentioned biometrics, collection of the same would be illegal. You cannot have collection of something as invasive as biometrics without express authority," Mr Divan contended.
Justice Chandrachud wanted to know consequences if Mr Divan is right.
The Senior Counsel replied, "If this submission is accepted, all enrolments prior to the Act will have to go."
Mr Divan then pointed out how Section 7 of the Aadhaar Act, in reality leading to exclusion for beneficiaries. He said, "There are 144 notifications issued by the government covering 252 schemes. First, schemes that apply to children should be excluded. Secondly, exclude schemes that are based on competitions. Thirdly, exclude schemes that have to do with rehabilitation. Fourthly, matters of food and health should be excluded."
Justice Chandrachud asked in that case, what principle should be evolved. Mr Divan pointed out to an affidavit filed by Reetika Khera on the issue of exclusion due to Aadhaar.
Justice Chandrachud asked whether Section 7 could be interpreted in a way that prevents exclusion. "Whether there is any principled interpretation of words like subsidies, benefits and services that would prevent its mindless expansion," he asked.
Replying to this, Mr Divan cited an example of a lawyer who was in a coma and yet how the bank threatened to cut off her pension.
Agreeing with this, Justice Chandrachud stated, "There is no question that this is an issue and that it has to be addressed."
Informing the Bench about schemes under Section 7, Mr Divan said, "There is no question of subjecting children to Sarva Shiksha Abhiyaan and Mid-Day Meal Schemes. The second class of schemes is involving merit, such as painting and essay competitions for schoolchildren, for which Aadhaar has been made mandatory. This goes way beyond any conception of proportionality."
Justice Sikri says that under the garb of distributing these schemes, it should not be the case that undeserving or fraudulent people get benefits. "We understand there are issues of exclusion, but there is also an issue of fraud, and how do you address that issue," he asked.
Replying to this, Mr Divan said, "There must be a reasonable alternative way of identification that is allowed to an individual. For health-based schemes, I may not want to reveal that I have tuberculosis. There is a scheme called the Jiyo Parsi Scheme to increase the number of Parsis, and even for that they have made Aadhaar mandatory."
Mr Divan then explained impact on human beings of Aadhaar Act on being passed as money bill. He said, "The Constitution has a very intricate scheme of defences for protecting rights. The last line of defense is the Court. But there are other concentric defences and bulwarks. There are two crucial bulwarks. The first is the Rajya Sabha. In the Aadhaar Act that protection has been lost. The second important bulwark is Article 111 of the Constitution (assent to bills). This protection (Presidential review and return of bills for reconsideration) has also been done away with by labelling Aadhaar Act a money bill."
Justice Chandrachud also referred to his judgment on Ordinances, which used similar logic to read the Ordinances provision narrowly.
Senior Counsel Gopal Subramaniam, calling delivery of public services as function of government, contended that "It is important to note that these are government functionaries. And the government cannot place the burden of its own failures on the people."
"Has the State produced evidence that children want a fake midday meal or that a widow wants a second pension? It is not the beneficiaries who are cheating the system, but by functionaries of the State," he argued.
Justice Sikri pointed out towards intermediaries such as fair priced shop owners.
Agreeing with this, Mr Subramaniam said, "In each situation, the victims are the beneficiaries."
He then argued about Section 33 of the Aadhaar Act, related with disclosure of information. "This Section contemplates authentication records, which gives the footprint of your activities to the State. Is there a nexus between this knowledge being with the State and the delivery of public services? The answer is in the negative. This violates the requirements of the privacy judgment that the infringement be minimal."
Justice Sikri pointed out that the other side had argued that because of deduplication, fakes have been weeded out. The Senior Counsel termed this claim as 'voluptuous' while sharing some data about deduplication and fakes in the Aadhaar scheme.
In this case, Mr Subramaniam contended that a number has become a form of identity. "What school admissions have to do with delivery of public services. This is no more empowering or enabling, but actually disempowering. If law has the effect of disempowering people, and impairing the identity guaranteed to them by the Constitution, the Aadhaar scheme must fall," he said.
Speaking about retrospective validation as being sought under the Aadhaar Act, the Senior Counsel said, "Retrospective validation is possible only if you had a law in the first place, and you had valid actions under that law. Here there was never any law, and there is a fundamental rights violation."
The hearing will continue on Thursday.
(Based on live tweets from Gautam Bhatia @gautambhatia88 and Prasanna S @prasanna_s, who each represent one of the petitioners)