In Supreme Court, Centre admits Aadhaar data leak, critics cite ‘civil liberties’

“Through this, a person can be tracked and remain under electronic surveillance throughout his life,” senior advocate Shyam Divan told the bench. The decision, he asserted, was in “complete collision” with the norms laid down by the UIDAI, which clearly states that Aadhaar is “voluntary”. Pointing out that Aadhaar “enrollers”, who collect citizens’ data and biometrics, are private parties and there is serious threat of misuse or leakage of data, Divan said: “There are cases where such information has been commercially sold. The law says life and body is paramount and if the fingerprints of an individual are stolen, it might end his identity… If we fail here, there is tremendous possibility that state will dilute civil liberties and dominate its citizens. The concept of civil liberties will go then.”

“Even today, UIDAI website says that every citizen is entitled to voluntarily obtaining Aadhaar,” he said. “Instrumentalities of state do not defraud the public. UIDAI has given the correct interpretation, that is, Aadhaar is voluntary. The language of the statute and understanding of UIDAI is clear. Aadhaar is entirely voluntary,” he said, adding that the application form for Aadhaar enrollment also says it is voluntary. Referring to reports that newborns in Haryana need Aadhaar for their birth certificates, he said the issue raised questions of civil liberties of the highest constitutional level, and the court was duty-bound to protect the rights of citizens.

Divan argued that there was a “complete collision” between the Aadhaar Act and Section 139AA of the IT Act, which makes Aadhaar mandatory for filing Income Tax returns and applying for PAN cards with effect from July 1 this year. The bench, comprising Justices A K Sikri and Ashok Bhushan, was hearing a clutch of petitions filed by retired army officer S G Vombatkere, Dalit activist Bezwada Wilson and senior Kerala CPI leader Binoy Viswam. Defending the Centre’s decision to make Aadhaar mandatory for filing Income Tax returns, Sengupta said, “The object is not to discriminate, but to ensure that duplicate PAN cards are weeded out and consequent deleterious effects of PAN duplication are avoided.’’

The counsel, who heads Delhi-based think-tank Vidhi Centre for Legal Policy, said: “Conscientious objectors are essentially offenders of the law because they feel they have good moral reasons to do so. If that is so, most laws would be discriminatory”. He drew parallels with the national anthem case, saying there may be people who do not want to stand up for the anthem. The Centre also argued that there was “no absolute right to informational self-determination’’ — right to decide which information can be shared with state agencies — and that even if any privacy provisions existed, it had to be interpreted in the context of Indian realities and not western laws.

On the question of privacy, Justice Sikri sought to know if those living in a tax regime could decide how they wanted to pay taxes. “Gender is a personal choice, but can we say the same when we live in a tax regime?’’ the judge asked. The Centre responded by saying that Parliament had decided “that you may have to do something which they (petitioner) do not want to do”. “There could be many things which could be objected to but the law cannot be said to be discriminatory… State has a right to ask for information and state does it also. We cannot impart on the conception of privacy prevailing in different parts of the world,” it said.

Rejecting the Centre’s stand, Diwan contended that Aadhaar had become an instrument of oppression and discrimination. “This is not an elite concern but a very civil rights one,’’ the senior counsel pointed out, adding that older people face a genuine problem as their fingerprints get erased with time and they find it impossible to provide their biometric data. The hearing will continue on Thursday.