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.
"Once directions are issused by this court, everyone has to obey it. At least protect the institution first before the citizens", Shyam Divan.
— Bar & Bench (@barandbench) December 14, 2017
"Once directions are issused by this court, everyone has to obey it. At least protect the institution first before the citizens", Shyam Divan.
— Bar & Bench (@barandbench) December 14, 2017
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.
#Aadhaar: When HIV patients cannot get medical treatment because he/she does not have Aadhaar, then it is a very sad situation in this country", Shyam Divan.
— Bar & Bench (@barandbench) December 14, 2017
Shyam Divan asks whether a midday meal can be denied to a schoolchild because they don't have Aadhaar
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Shyam Divan says that the notifications making Aadhaar necessary for children have no statutory backing, there is no opportunity of consent, and they affect the most basic things like school admissions.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Shyam Divan points to circulars refusing to disburse scholarships to students without Aadhaar
— Gautam Bhatia (@gautambhatia88) December 14, 2017
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.
The CJI says that we will not look at websites and newspaper reports.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Shyam Divan says that if people are being deprived of retroviral treatment because they don't have an Aadhaar, it is a sad day for the country.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Shyam Divan says that an application has been filed. The AG says he does not have notice. Shyam Divan says that the AG has been served and has even conteoverted the arguments in a counter affidavit.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
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.
SD replies saying these two interpretations of Section 7 was noticed in the Binoy Viswam judgment but makes it clear that Aadhaar remained voluntary under the Act. Also says there is nothing in the Act or statement of objects that indiciate any intention to override the orders.
— Prasanna S (@prasanna_s) December 14, 2017
#Aadhaar: Attorney General KK Venugopal submits that interim orders were passed at a time when there was no law in force. Relies on Aadhaar Act to submit that current bexecutive actions are validated by law.
— Bar & Bench (@barandbench) December 14, 2017
#Aadhaar: Shyam Divan argues though Aadhaar Act was enacted, Union of India will still have to approach the Court and seek variation in the interim order.
— Bar & Bench (@barandbench) December 14, 2017
#Aadhaar: "There is an order passed by a Constitution Bench of this court. The only difference is there is a law now. Even then, it is a minimum requirement that they come to this Court and seek a variation of the interim order", Shyam Divan.
— Bar & Bench (@barandbench) December 14, 2017
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.
GS: This 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. That is the spirit of this Court's orders.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
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.
GS says the basis of the orders in exercise of art 32 jurisdiction is the FRs of Indian citizens. It cannot be removed by any statute! (Ah. What a point!)
— Prasanna S (@prasanna_s) December 14, 2017
GS: All the orders have one pattern. The reason why this Court specifically asked the government to comply was because there were numerous violations.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
GS: There were cases of exclusion. Cases of compulsion. That's why interim orders were passed.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
GS: The orders of this court have two bases. One basis is voluntariness and the rights of citizens. That basis cannot be removed by statute.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
GS: If the basis of those interim orders is the dignity of citizens, to protect fundamental rights, cannot be abrogated by legislation.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
GS: This Court exists to protect the most vulnerable. Can this Court stand by when a notification is passed making Aadhaar compulsory for children of bonded labourers?
— Gautam Bhatia (@gautambhatia88) December 14, 2017
GS: The Central Government has passed 139 notifications under Section 7 of the Aadhaar Act.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
GS: Notifications under Section 7 are not even delegated legislation, they are conditional legislation.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
GS reiterates that the earlier orders of the Court are based on dignity, consent and the right to personal information. That rationale must continue.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
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.
SD replies saying these two interpretations of Section 7 was noticed in the Binoy Viswam judgment but makes it clear that Aadhaar remained voluntary under the Act. Also says there is nothing in the Act or statement of objects that indiciate any intention to override the orders.
— Prasanna S (@prasanna_s) December 14, 2017
Arvind Datar says that even if you assume that aadhaar can be made compulsory under Section 7, that's only for services paid for by the Consolidated Fund
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Arvind Datar asks what does making Aadhaar mandatory for death certificate have to do with Section 7.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
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.
Anand Grover (next counsel) says that he will answer this question. He says that the moment you link, silos break down.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Anand Grover says that the data protection law is not in place yet.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Anand Grover says that biometrics and iris scans are not foolproof.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Anand Grover says that this leads to exclusion. 8 crore people have been excluded.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Anand Grover says that the data is outsourced to private parties.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
Anand Grover says that we filed an RTI asking about which companies have been given the data, they have not answered.
— Gautam Bhatia (@gautambhatia88) December 14, 2017
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.]