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Hearing the case about Aadhaar linkages the Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, D Y Chandrachud and Ashok Bhushan on Thursday (April 26) was told by senior counsel Gopal Shankaranarayanan that there could be a day when all other identities could lapse and only Aadhaar survive. The bench was not happy with that.

The counsel said:  “In order to avail of services I need to identify who I am.”

Justice Chandrachud said: “It does not affect constitutional rights as its the sole purpose is social welfare. He cited Justice Kaul’s judgment and said that it is a proof and evidence of identity. He said it affects in some manner the privacy, but if we look to it from an affirmative point of view. It does not affect the core identity of an individual.”

The counsel says identification is essential for availing of the services. “Now the question arises, for what all purpose is this identification is used? Identification of identity is essential to article 21. Right to identity is accepted internationally.”

Justice Chandrachud said: “There are two purposes of Aadhaar. They are:

  1. Uplift the standard of living
  2. Reasonableness

The counsel said that there is a disclosure in 3 (2) of the act. If at some stage Aadhaar becomes the universal identity, then all other schemes of human identity will lapse with time.

To this Justice Chandrachud said: “For travelling we will need passports, for driving we will need driving licenses. Aadhaar cannot substitute each and every document.”

To that counsel Shankaranarayanan said there was a balance in Aadhaar Act.

He said Aadhaar passes the tests of:

  1. Being voluntary
  2. Consent
  3. Consolidated fund.

Justice Chandrachud immediately pointed out that “it’s not voluntarily but a mandatory requirement, and you are attracting 139(a). If you want to avail services you need to have Aadhaar”.

The issue of storage of information again came up, to which the counsel said that the object of the act is effective and secured information. “Therefore, in my view, the act passes the test of proportionality.”

Justice Chandrachud said: “There is no doubt that technology needs to be upgraded, but it does not mean that its consequential issues can be ignored.”

The counsel said that the authority must be a body corporate and that the information collected shall only be used for the purpose it was collected and not otherwise. He said that substantial protection has been provided under the act.

“In chapter 6, it is provided that if information given for Aadhaar is used for any other purpose then requisite action will be taken. The information in Aadhaar sticks to Aadhaar Act and section 48 A of the IT Act.”

Another counsel made his submission. He said: “If we go to a private player the private player has the option of going to AUA and PUA which is governed by the act. Therefore private sector would be regulated.”

He said there are two things:

  1. If you want to use Aadhaar, use the Aadhaar. There is no compulsion for this.”
  2. About the security issue he said that the AUA or PUA carries out the authentication governed by the act or it can be suggested that a regulated body carries out the authentication process. There is no unregulated authentication and identification process.

He also said that it is wrong to say that there is a central depository body where all data is being collected. “Only basic demographic data is collected,” he said.

Justice Chandrachud said: “The problem is not with the UIDAI Act.”

The counsel again repeated what has been said before. He said other sites like Amazon, Facebook etc. have complex algorithms. Aadhaar does not enable such things and there is no such central regulatory authority.

Another counsel submitted that this is not the case of finding the reasonable balance between privacy and socio-economic rights, but here we need to assure the welfare of the society as a whole.

He said there are three kinds of duties:

  1. Duty to respect
  2. Duty to protect
  3. Duty to fulfill

Aadhaar creates that infrastructure that will help in progress and welfare of the state and better imparting of duties, he said.

There will be more submissions in this on Wednesday.

—India Legal Bureau

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