Aadhaar hearing: Supreme Court urged to 'protect the institution before protecting citizens'

While the country seems transfixed with the ongoing Gujarat Assembly polls, the battle for citizens' fundamental rights - to that of privacy, bodily autonomy, freedom of various kinds - is being fought in the highest court of the land. A five-judge constitutional bench is hearing the Aadhaar case for interim relief, and the petitioners' counsels, including advocate Shyam Divan, have argued passionately against what they deem as the unconstitutional nature of Aadhaar, especially the brazen manner in which the government is flouting even the Supreme Court's own 2015 ruling to make the biometrics-based Unique Identity (UID) mandatory from its legal nature of being voluntary.

Shyam Divan has asked the apex court to "protect the institution first before the citizens", indicating how the judiciary is being subverted and disregarded by the government of the day in the Aadhaar issue. Advocate Divan is arguing before a constitution bench comprising Chief Justice Dipak Misra and justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. The government of India is being represented by attorney general (AG) of India, KK Venugopal.

In the first part of the hearing, advocate Divan had taken the court through the 139 different orders and notifications from the government that have mandated the linking of Aadhaar for continuation of services, including the linking of UID with bank accounts and mobile numbers. In addition, Divan mentioned how scholarships, mid-day meals, medical treatments to HIV patients, pensions to disabled, those with skin problems, those losing eyesight or developing eye problems, etc are being denied on the pretext of not having linked Aadhaar with the services.

While the CJI said that "newspaper and website reports" wouldn't be considered as tangible record or evidence in court, Divan alerted the judges that applications have been/are being filed over multiple cases.

AG Venugopal has countered Divan's arguments saying that the 2015 order by the SC was given when the Aadhaar Act 2016 hadn't been passed, and therefore the current executive actions are "validated by law". Divan replied that despite the legislature passing the law, the court's 2015 order must be modified for the law to take effect.

In the second part of the hearing, petitioners' counsel Gopal Subramanium continues the argument that Divan had made in the first half, saying the "court has exercised judicial power in favour of citizens, to insulate them against compulsion, duress, or any form of force through which they would have to part with their personal information", by invoking the August 2017's privacy judgement.

Subramanium explains the "patterns" in the Aadhaar case orders and hearings, and urges the court to acknowledge the "numerous violations" of fundamental rights, cases of exclusion, compulsion, forced enrolment, and the robbing of the citizens of informed consent. Subramanium invoked the dignity of citizens which has been violated by the Aadhaar coercions, and how the current framework is a gross contravention of the all-encompassing reach of the privacy judgement.

He mentioned that the central government's 139 notifications under Section 7 of the Aadhaar Act end up covering most of the activities of citizens in private and public capacity, thereby making them at the mercy of the state. Effectively, Subramanium contrasts the landmark privacy judgement and the forcing of citizens to yield information at every step to the government and its public and private subsidiaries to avail services as a fundamental violation of rights.

Arvind Datar takes up the argument from Gopal Subramanium when he says that Aadhaar made compulsory under Section 7 of the Aadhaar Act can only be applied to services paid for by the Consolidated Fund of the government of India, and therefore linking it to services like getting a death certificate, etc, are clearly in violation of even the Aadhaar Act. In fact, Shyam Divan had also mentioned Section 7 of Aadhaar Act, saying the interpretations of the Section 7 nevertheless didn't contradict the voluntary nature of UID.

As Aravind Datar concludes by once again drawing the court's attention to the "draconian consequences" of mandatory Aadhaar, senior advocate Anand Grover rises to address the court. Grover says the "moment you link (Aadhaar to various services), the silos break down". In other words, without having a robust data protection law in place, forcing Aadhaar on citizens amounted to gross violations of security. In the privacy judgement, "informational autonomy" got a lion's share of mentions, and Grover pointed that Aadhaar was a direct contravention of that.

In his turn, AG Venugopal said that all the deadlines can be extended to March 31 (right now, the various deadlines differ on the last dates), and the case can be heard in January 2018 once again, when the court resumes after the winter break. Since the constitution bench is only hearing the matter of interim relief and not the very nature of Aadhaar itself, the deadline extension is the only possible outcome of today's hearing.However, it's very clear that the petitioners' counsels are fighting for the soul of Indian Constitution that the Aadhaar flouts at every point, while the government is hell-bent on legitimising this project that numerous observers have called a blatantly illegal surveillance scheme. That the petitioners today had to remind the Supreme Court of its own standing is a sign of the times.

[Editor's note: Lawyers @gautambhatia88 and @prasanna_s live-tweeted the proceedings from court, since the jury is out on whether or not journalists should have access to ongoing case hearings. DailyO is grateful for their thoughtful and accurate updates.]

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