Senior Counsel Gopal Subramanium carried on with his submissions before the Constitution bench on Thursday (February 22) in the bunch of petitions challenging the constitutional validity of Aadhaar and its linkages. The bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan heard the submissions.

Subramanium began with his submission while reading article 243(g) clause B. He said the act under consideration uses national security as an umbrella. It is an act for identification, but it doesn’t recognise eligible recipients.

Proof of identity through various forms which helps you procure the Aadhaar existed before Aadhaar, he said. These forms are still essential, for the purpose of availing benefits, as these forms / alternative identity proof hasn’t been removed.

He stressed that evidence other than Aadhaar must be permitted. Such a flawed structure cannot be permitted to be used for political and non political enrichment. Today if you want to see anybody’s profile you can see it through state resident data. “Through the Aadhaar Bridge (a private company-run system) anybody can go across and utilise the data stored in the process of Aadhaar. Earlier there was just an Aadhaar now there’s an Aadhaar bridge. It is highly shocking,” he said.

He also referred to the Representation of People Act and submitted judgments to show that the court has been protecting one’s social and political rights. “There’s no need to get nervous,” Subramanium to senior counsel Rakesh Dwivedi.

“Private players are claiming to get you through the data, calling themselves ‘Aadhar Bridge’,” he said. “More so, because they are providing authentication process, providing facility of e-wallets etc. I’ll show the credible documents from the government agency,” he said.

He said that the Act has come into the picture to facilitate private parties.

Justice Chandrachud asked: “Does the act authorise accessing of data? If it doesn’t then how does Aadhaar Bridge get access to such data?”

“There’s not just one database. This structure leads to multiple data bases. For example, if we go to Nayar Hospital, a private hospital in Mumbai, then that private player will have my information after authentication and that information might be shared with other private players,” Subramanium explained.

“The algorithm helps the private parties to profile a person and thus utilize that information for their private economic gains. Hence the algorithm is misused by using a facade of Aadhaar,” he said.

He continued, saying that Section 2 is very open-ended.

If the authentication fails, then the person ceases to exist. Such are the disproportionate consequences that he might not get any entitlement or benefits etc. He’ll be left out of the system.

He continued: “At the same time by using Aadhaar one can get a person’s demographics, income information etc. (which is not otherwise available).” While reading Section 4(3), he submitted that if other forms of identification were already available then what’s the use of bringing this method in picture?

Justice Khanwilkar asked: “Is there no process for updation, if a person fails authentication?”

The senior counsel answered: “Exceptions are only for people with illness, for those who are old, etc. But for other people who fail authentication, there is no proper alternative process. Where you fail authentication, updation is not what this act contemplates. Once you pass authentication, then only is there a provision for updation.”

He continued, saying: “Section 28 is more in the nature of assurance but not sufficiently strong. Regulation 19 presupposes that valid biometric should be present. The moment you fail or get rejected by the system you fall under the category section 27(1) a. It presupposes that you have been enrolled at a prior stage and are trying to duplicate your identity at the second instance.

“Suppose if a person tries to get himself enrolled and he fails authentication, it is automatically believed he has been enrolled already,” the lawyer explained. “One cannot retrieve his own biometric information if he wants to at some point. Under the Act, it is violative of the constitution. Here national interest is been used as an umbrella.

Then, talking about sections 27, 28, 29 and 30 of the act, he said that there’s no guarantee at all. “An act is supposed to be questionable even if it entrenches right of a handful. Here we are, in fact, looking at a bigger number,” he said.

While talking about the linking of Aadhaar with PAN, he said there is already a system. “I’m an assessee, open to assessment, appeal etc. Why does it have to be conditional to a fact that I have to share my biometrics?”

There was another sinister angle, as the lawyer pointed out. “The algorithm can evolve itself and can start to discover about an individual with ant lapse of time after collection and distribution of data,” he said. “This does not satisfy articles 14,19 and 21. If the number goes, the man goes,” he said, showing the anomalies in provisions of the act.

He said: “Data retention can be done for a precise reason and specific purpose, but this whole structure is very far-fetched and broad.”

Talking about future generations, he said: “There shouldn’t be a stamp for someone’s existence. One should be born in an environment of complete freedom.”

Subramanium concluded his submissions and on March 6, senior counsel Arvind Datar will argue on the point of money bill.

—India Legal Bureau