Wednesday, January 17, 2018

Affidavit on #Aadhar submitted by Senior SC lawyer, Shyam Divan in the Supreme Court


S. G. Vombatkere & Anr. Petitioners
Union of India & Ors. Respondents
And other Aadhaar Cases


1. The case at hand is unique. In part, this is because the programme
challenged here is itself without precedent. No democratic society
has adopted a programme that is similar in its command and sweep.
There are few judicial precedents to guide us. The closest foreign
cases have all been decided in favour of the citizen, repelling the
invasive programme by the State.
2. This case is about a new technology that the government seeks to
deploy and a new architecture of governance that builds on this
technology. The government and its supporters contend that the
biometric technology employed and the Aadhaar Act is greatly
beneficial. The petitioners challenge the programme and the statute
and rely on material that discredits the government’s tall claims.
3. The petitioners are certain that if the Aadhaar Act and programme
is allowed to operate unimpeded it will hollow out the Constitution,
particularly the great rights and liberties it assures to citizens. A
People’s Constitution will transform into a State Constitution.
4. The question that arises is whether the Constitution of India allows
the State to embrace this new programme or whether the
Constitution repudiates this giant electronic mesh. The petitioners
submit that the Constitution firmly repudiates Aadhaar. The
Constitution must do so in order (a) to preserve itself, its abiding
values, its foundational morality and (b) to protect citizens from the
advent of an all-seeing, intrusive State that recognises not the
individual, but a number.
5. Writing in 1974, Nani Palkhivala analysed the Kesavananda Bharati
case in a slim volume he titled, The Constitution: Defaced and Defiled.
The threat here is far more insidious. We do not have a frontal
attack on the Constitution by amending it. Instead, through a
succession of marketing stratagems and by employing smoke and
mirrors, the government has rolled out a little understood
programme that seeks to tether every resident of India to an
electronic leash. This leash is connected to a central data base that
is designed to track transactions across the life of the citizen. This
record will enable the State to profile citizens, track their
movements, assess their habits and silently influence their
behaviour. Over time, the profiling enables the State to stifle
dissent and influence political decision making. As the Aadhaar
platform extends to private corporations, the degree of tracking
and extent of profiling will exponentially increase. Several State
governments have started using the Aadhaar platform to build
profiles of residents that is reminiscent of totalitarian regimes.
6. At its core, Aadhaar alters the relationship between the citizen and
the State. It diminishes the status of the citizen. Rights freely
exercised, liberties freely enjoyed, entitlements granted by the
Constitution and laws are all made conditional. Conditional on a
compulsory barter. The barter compels the citizen to give up her
biometrics ‘voluntarily’, allow her biometrics and demographic
information to be stored by the State and private operators and
then used for a process termed ‘authentication’. The State issues an
Aadhaar number and then requires the number to be embedded
across service providers and agencies -- unless the number is
seeded in databases of the service provider, the citizen is denied
access to these most essential facilities. Inalienable and natural
rights are dependent on a compulsory exaction.
7. The State is empowered with a ‘switch’ by which it can cause the
civil death of an individual. Where every basic facility is linked to
Aadhaar and one cannot live in society without an Aadhaar
number, the switching off of Aadhaar completely destroys the
8. Could it ever be envisaged that under this Constitution which ‘We
the People’ have fashioned after a long freedom struggle steeped in
sacrifice, the State can arrogate to itself so much power that it can
‘extinguish’ a citizen or be willfully blind with respect to a citizen
who would like to identify himself in a manner other than Aadhaar?
9. The Constitution balances rights of individuals against State
interest. Aadhaar completely upsets this balance and skews the
relationship between the citizen and the State, enabling the State to
totally dominate the individual. The Constitution of India is not a
charter of servitude. Aadhaar, if allowed to roll out unimpeded
reduces citizens to servitude.
10. What then are some of the key issues that arise in this case?
a) Whether the Constitution of India sanctions the creation of a
surveillance state and surveillance society where routine and
regular every day transactions are recorded by the State;
b) Whether the personal autonomy of Indians extends to
biometrics such as finger prints and iris scans and
consequently whether citizens of India can be required to use
their bodies as markers wherever demanded;
c) Whether the Rule of Law, a basic feature of the Indian
Constitution mandates that where demographic and
biometric information is collected from citizens at the
instance of the State, the exercise is (i) backed by law, (ii)
carried out by government alone having regard to the very
sensitive and personal nature of the information, (iii)
preceded by a meaningful process of securing informed
consent. Whether the Aadhaar project conflicts with the Rule
of Law and constitutionalism?
d) Is the Aadhaar Act, 2016 a validly enacted law, having been
passed as a Money Bill?
e) Whether the right to privacy guaranteed under Part III of the
Constitution, especially dimensions such as ‘the right to be let
alone’ and ‘the right to be forgotten’, entitle a citizen to
protect her personal identity, her movements, her social
interactions, etc., without being forced to part with personal
information to the State and without being forced to embed
her information with government departments and private
f) Whether in a democracy, the citizen has a choice for
establishing her identity. Correspondingly, whether the State
is under an obligation to allow access to benefits, services,
subsidies, etc. so long as the individual chooses to identify
herself in some reasonable manner?
g) Whether the coercive power of the State under the Aadhaar
project can extend to children?
h) Whether in a digital world the right to personal autonomy
extends to informational self-determination? Whether an
individual can protect herself by controlling the information
she chooses to put out?
i) Whether the vulnerability of the Aadhaar database
compromises national security?
11. In this batch of cases the challenge is directed at the constitutional
validity of:
(a) The Aadhaar programme that operated between 28.01.2009
until the bringing into force of the Aadhaar Act, 2016 on
(b) The Aadhaar Act, 2016 (and alternatively certain provisions of
that Act);
(c) Elements of the Aadhaar project or programme that continue
to operate though not within the cover of the Act.
(d) Specific Regulations framed under the Aadhaar Act,
illustratively the Aadhaar (Authentication) Regulations, 2016.
(e) A set of subordinate legislation in the form of statutory rules/
regulations including:
• The Money Laundering (Amendment) Rules, 2017;
(f) All notifications (nearly 139) issued under Section 7 of the
Aadhaar Act (assuming the Act is upheld) in so far as they
make Aadhaar mandatory for availing certain benefits/
services/ subsidies including PDS, MGNREGA and social
security pension;
(g) Actions on the part of the authorities to make Aadhaar
mandatory even where not covered by Section 7, inter alia,
• Actions by CBSE, NEET, JEE.
• UGC requirements for scholarship.
(h) Specifically, actions on part of the Union government
mandating linking of mobile phones and Aadhaar vide DoT
circular dated 23.03.2017.
(i) Section 139AA of the Income Tax Act in so far as it violates
Article 21 by mandating linking Aadhaar to PAN and
requiring Aadhaar linkage for filing returns.
12. Apart from the declaratory reliefs regarding ultra vires and certiorari to
quash the provisions/actions enumerated above, there are certain
other reliefs that are also sought including:
(a) Suitable declarations regarding the physical autonomy of a
person over her own body qua the Indian state;
(b) Mandatory directions requiring the respondents to give an
option to persons who are enrolled with the Aadhaar
programme to opt out and to delete the data with suitable
certification for compliance;
(c) Mandatory directions to all concerned authorities that should
the Aadhaar Act, etc. be upheld, nevertheless, every person
must be entitled to avail services, benefits etc. through
alternative means of identification. Negatively, nothing can be
withheld from a citizen merely because she/he does not have
an Aadhaar card or does not wish to use their Aadhaar card.
(d) Mandatory directions consistent with the fundamental right
to privacy and the right of a citizen to “to be let alone” that no
electronic trail or record of his/her authentication be