‘Aadhaar has brilliant tech, but constitutionally flawed’

NEWDELHI: Senior counsel Shyam Divan, representing petitioners against Aadhaar law, attacked the controversial unique identification number in the Supreme Court (SC), terming it “technologically brilliant but constitutionally flawed.”

Replying to the arguments advanced by Attorney General KK Venugopal and other senior counsels representing the Unique Identification Authority of India (UIDAI) and some state governments, Divan told a fivejudge Constitution Bench headed by Chief Justice of India Dipak Misra that Aadhaar created a mass surveillance tool which would have “chilling effects” on fundamental rights of individuals. “I don’t believe that in 2018 the SC is going to usher in such an era of mass surveillance…may be Aadhaar is technologically brilliant, but constitutionally it’s flawed…” Divan told the Bench, which also included justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan.

Noting that technology was important and no one could do without it, Divan said a balancing act was needed to safeguard fundamental rights of individuals, including right to privacy.

Justice Chandrachud, who interjected Divan several times, asked him to spell out what safeguards he would like the court to prescribe. Divan pointed out that the entire Aadhaar infrastructure was based on self-verification process and agencies appointed by the UIDAI did not verify information of applicants. The Aadhaar law complies with the tests laid down in the right to privacy judgment. Aadhaar is fair, just and a reasonable law. It meets the standards and has adequate safeguards. It’s in pursuance of a larger public interest, including preventing dissipation of social welfare benefits, prevention of black money and money laundering. And, these are all legitimate state interests.

Need to balance two competing rights-- right to live a life of dignity, which includes right to food, employment and medical care and the right to privacy. The question is whether right to privacy can be invoked to deprive other sections of the society of benefits. Aadhaar is a completely random number, and once issued, it is never issued again. Data collected is secured and encrypted, even “the faster computer on earth will take more than the age of the universe” to break the encryption key.

Aadhaar is not exclusionary. The UIDAI has made exceptions for people with leprosy, eye problems and other disorders where collecting biometrics was difficult. It is not linked to citizenship and includes transgenders and children within its scope. The demographic information that is required under Aadhaar was already being taken under Section 139A of the Income Tax Act for obtaining PAN along with the left hand thumb impression of individuals who cannot sign. Data collected for the project cannot be accessed by government or third parties without the prior concurrence of the UIDAI.

Banks and mobile phone companies using Aadhaar details should be made accountable. Those opposing the 12-digit unique identity number have argued that taking of biometric details such as the iris scan and finger prints is an invasion of privacy, declared a fundamental right by a nine-judge bench of the top court in August.