Aadhaar can cause the civil death of an individual: petitioners tell SC

Aadhar is akin to a “switch” in the hands of the government by which it can cause the civil death of an individual, is how senior advocate Shyam Divan described the 12-digit biometric-based unique identity programme to the Supreme Court.

The SC bench headed by Chief Justice of India Dipak Misra on Wednesday began hearing petitions challenging the constitutional validity of Aadhaar and the Narendra Modi regime’s move to link it to a number of government schemes.

The hearing comes in wake of a media report of database breach of Aadhaar which the Unique Identification Authority of India (UIDAI) and the government have strongly refuted.

Ahead of the hearing, a number of Union ministers and BJP leaders actively campaigned for the Aadhaar on Twitter

Appearing for the petitioners, Divan contended that if the Aadhaar programme is allowed to operate unimpeded it will hollow out the Constitution, particularly the rights and liberties of the citizens and “people’s Constitution will transform into a State Constitution”.

He submitted that the Constitution must repudiate Aadhaar in order to “preserve itself, its abiding values, its foundational morality and to protect citizens from the advent of an all-seeing, intrusive State that recognises not the individual, but a number”.

Aadhaar, a leash on citizens

He said the government employed marketing stratagems and smoke and mirrors to roll out the “little understood” programme which now seeks to tether Indian residents to an electronic leash.

“This leash is connected to a central data base that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour.

“The profiling enables the State to stifle dissent and influence political decision making. As the Aadhaar platform extends to private corporations, the degree of tracking and extent of profiling will exponentially increase.

Submitting further, he said several state governments have started using the Aadhaar platform to build profiles of residents which is reminiscent of totalitarian regimes.

“At its core, Aadhaar alters the relationship between the citizen and the State. It diminishes the status of the citizen. Rights freely exercised, liberties freely enjoyed, entitlements granted by the Constitution and laws are all made conditional, conditional on a compulsory barter.

The barter compels the citizen to give up her biometrics ‘voluntarily’, allow her biometrics and demographic information to be stored by the State and private operators and then used for a process termed ‘authentication’.

Aadhaar a switch in government’s hands

“The State is empowered with a ‘switch’ by which it can cause the civil death of an individual. Where every basic facility is linked to Aadhaar and one cannot live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual,” contended the petitioners.

“Could it ever be envisaged that under this Constitution which ‘We the People’ have fashioned after a long freedom struggle steeped in sacrifice, the State can arrogate to itself so much power that it can ‘extinguish’ a citizen or be willfully blind with respect to a citizen who would like to identify himself in a manner other than Aadhaar?”

He said the Constitution balances the rights of individuals against State interest. But Aadhaar completely upsets that balance and skews the relationship between the citizen and the State, enabling the State to totally dominate the individual.

“The Constitution of India is not a charter of servitude. Aadhaar, if allowed to roll out unimpeded reduces citizens to servitude,” argued Divan.

Key issues in the case

As per Divan’s opening statement submitted before the court, the keys issues in the petition are:

• Whether the Constitution sanctions the creation of a surveillance state and surveillance society where routine and regular every day transactions are recorded by the State.
• Whether the personal autonomy of Indians extends to biometrics such as finger prints and iris scans and consequently whether citizens of India can be required to use their bodies as markers wherever demanded.
• Whether the Aadhaar project conflicts with the Rule of Law and constitutionalism.
• Is the Aadhaar Act, 2016 a validly enacted law, having been passed as a Money Bill?
• Whether the Right to Privacy entitles a citizen to protect her personal identity, her movements, her social interactions, etc., without being forced to part with personal information to the State.
• Whether in a democracy, the citizen has a choice for establishing her identity. Correspondingly, whether the State is under an obligation to allow access to benefits, services, subsidies, etc. so long as the individual chooses to identify herself in some reasonable manner?
• Whether the coercive power of the State under the Aadhaar project can extend to children?
• Whether in a digital world the right to personal autonomy extends to informational self-determination? Whether an individual can protect herself by controlling the information she chooses to put out?
• Whether the vulnerability of the Aadhaar database compromises national security?