New Delhi: A Constitution bench of the Supreme Court began hearing petitions against the Aadhaar programme on Wednesday, with one lawyer describing it in opening arguments as a “giant electronic mesh".

Lawyer Shyam Divan said Aadhaar, the 12-digit unique identity number, was an instrument that “enabled the state to profile its citizens, track their movements and affect their social behaviour".

If the programme is allowed to operate unimpeded, it would hollow out the Constitution, Divan warned. A people’s Constitution would turn into a state Constitution because of the mass surveillance it would entrench, he said.

The hearings began before a Constitution bench comprising Chief Justice of India (CJI) Dipak Misra and justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan.

The bench was formed in December to hear arguments on the constitutional validity of the 12-digit biometric identification number that is assigned by the Unique Identification Authority of India (UIDAI). Aadhaar has now become the bedrock of government welfare programmes, the tax administration network and online financial transactions.

A total of 29 petitions have been tagged by the Supreme Court to be heard by the Constitution bench. They challenge several aspects of Aadhaar and the use/sharing of data collected by UIDAI.

Petitioners have challenged making Aadhaar mandatory for availing of social welfare benefits and filing of income tax returns (ITRs) as well as for obtaining and retaining the Permanent Account Number (PAN) required for filing ITRs. They have also cited the potential for infringement of an individual’s right to privacy.

Divan said the issues surrounding Aadhaar should be tested against constitutional principles.

“The collection of biometric data was patently illegal, and that could not have been corrected by passing the Aadhaar Act. Besides, it leaves behind an electronic trail and operates as a pervasive system. Can my body be used as a marker in a government programme?" Divan asked, explaining to the Constitution bench how authenticating identity works under the Aadhaar programme.

At this, justice Chandrachud wondered if Aadhaar could be considered safe if the biometric information was used only for the purpose for which it was collected.

“Why can’t the state say it is a valid state interest to ensure that social benefits reach the right hands through the programme," Chandrachud asked. Divan said he would address this issue in detail at a later stage. 

Some of the issues posed by the petitioners to the court are: does the Constitution of India sanction the creation of a surveillance state; does an individual’s personal autonomy extend to biometrics covering finger prints and iris scans; is the collection of biometric information of citizens backed by the rule of law?

Two new pleas challenging Aadhaar—one by the West Bengal government on the mandatory linking of Aadhaar to various schemes and another challenging its mandatory linking with mobile numbers—have also been brought before the court.

The Constitution bench was set up on 13 December after repeated attempts by petitioners for an early hearing on the issue of mandatory Aadhaar linking with bank accounts, mobile phone numbers and other services. 

Two days later, the court granted interim relief, extending the deadline for linking of Aadhaar with mobile services and opening of new bank accounts to 31 March 2018.

The new deadline would also be applicable to the schemes of ministries/departments of the Union government as well as those of state governments, the court ruled.

In a path-breaking ruling on 24 August 2017, the apex court held that privacy is a fundamental right. In the process, it set the stage for the introduction of a privacy law; the government has appointed an expert group under former Supreme Court judge B.N. Srikrishna to make recommendations. 

The petitioners will continue with their arguments on Thursday.

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