Aadhaar law: Can't declare it unconstitutional for fear of misuse, says SC

New Delhi: West Bengal on Tuesday used PrimeMinister Narendra Modi's speech at Davos that one who controls data would control the world to assail in the Supreme Court the ambitious Aadhaar scheme, saying the Centre would control personal information of citizens to have a grip over them.

The Mamta Banerjee government was putting forth its arguments before a five-judge Constitution bench headed by Chief Justice Dipak Misra which is hearing a clutch of pleas challenging the constitutional validity of the Aadhaar scheme and the enabling 2016 law.

Senior advocate Kapil Sibal, appearing for the West Bengal government, referred to parts of Modi's recent speech at the World Economic Forum at Davos.

"Whoever controls data is the most powerful and can shape the world," Sibal said quoting the prime minister.

Using the statement to buttress his submissions against the Aadhaar scheme, Sibal said it meant that "who controls data in India will control India" and the state will use the power like "never before".

He told the bench, also comprising justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, that Aadhaar was nothing but the Right to Information of the State and the question was can it be held as constitutional. 

"The answer is 'no'," Sibal added.

He said that it was the most important case to be decided by the apex court since independence and it was not the issue as to how much money the government was going to save, rather, the key point was whether citizens can be deprived of their fundamentals rights including the right to have choices.

"Digital world is far more susceptible to manipulations than the physical world," he said, adding "no legislation can or should allow an individual's personal data to put at risk".

Sibal further said that no technology was safe and moreover, no assurance can be given that personal data of citizens would remain safe in digital space.

"Biometric, core biometric and demographic information of an individual is irretrievable once it becomes part of the digital world," he said, adding that such information, if put in digital domain, were like "genie which is out of the bottle" and can never be put back.

He said that the digital world was a vehicle to benefit "information economy" and the present move of the government in the form of Aadhaar would create an architecture of "an informational polity having "far-reaching consequences impacting most of personal rights which are constitutionally protected".

Referring to provisions on deactivation of Aadhaar, Sibal said, "what kind of power is this? This is the power to cause civil and digital death (of a person)."

He gave an example of a woman being denied widow pension on the ground that she does not have Aadhaar and said, "I am entitled for widow's pension because of my status and my entitlement has noting to do with my identity."

The bench said the constitutionality of a law has to be judged on generality of cases and not on exceptional cases.

"How does the court decide what level of risk is proper or not? Should the court get into this or should it be left to the legislature," the bench asked.

Sibal would resume his submissions on Wednesday.

Earlier in the day, senior advocate Shyam Divan, who appeared for those opposed to Aadhaar scheme, referred to a report on deaths caused due to starvation in Jharkhand as the ration cards of the victims were not linked with Aadhaar and said that the issue pertained to exclusion, death and dignity.

These reports were about "extreme situations" and in a democracy, there has to be an element of choice and Aadhaar should not be imposed, he said, adding there were other ways to weed out leakages in welfare schemes.

Divan said persons, who cannot authenticate identities under the scheme, are often treated as "ghosts" and this cannot be tested on the parameters of fundamental rights.

He said once an individual is enrolled, he is not allowed an opt-out and a person should be given a right to opt out, if he finds out that his biometric data is being misused.

"Many people, who now wants to opt-out had said that there was no genuine informed consent at the time of enrolmentor they were not even aware that there is need for consent..," he said.

Citizens' data have been made available to private firms for commercial purpose and architectural design of UIDAI was such that it has very little control over this, he said, adding that there is no fiduciary relationship between the individual and the person collecting the data.

The bench took an example of credit card fraud and wanted to know whether this can be possible with Aadhaar.

It is possible to hack into these systems, which are not as secure as the central depository, Divan responded.

"Some of these leaks can be plugged but the basic architectural design of UIDAI is faulty and biometric data is easily compromisable," he said.

Referring to an RTI reply, Divan said that enrolment of 6.23 crore people for Aadhaar was rejected because of duplicates as the UIDAI system works on probabilistic system.

Divan concluded his submissions and said the State may say that "I will choose to recognise you only in this manner, otherwise you cease to exist? The body cannot be used as a marker for every service".

The apex court had on December 15 last year extended till March 31 the deadline for mandatory linking of Aadhaar with various services and welfare schemes of all ministries and departments of the Centre, states and Union territories.