If biometric authentication is attached to every transaction entered into by a person, it would “form a wealth of information” necessitating the need for data protection, the Supreme Court observed today. A five judge bench headed by Chief Justice Dipak Misra, hearing a clutch of petitions challenging Aadhaar and its enabling 2016 law, apprised the UIDAI of its apprehensions saying biometric authentication of Aadhaar number in every transaction could lead to aggregation of meta data of citizens, which can be collated and used for many purposes including surveillance. “Fingerprint by itself does not disclose any information. But, when it attaches with all the other information, it forms a wealth of information and then comes the need for data protection,” the bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said. “If my biometrics are attached to every transaction I undertake, it ceases to be just an identification mark,” Justice Chandrachud said and referred to a hypothetical instance. He said if a person has been authenticating Aadhaar since birth to admissions in nursery, CBSE examination, first job and visits abroad, then it would lead to “wealth of information” which can be collated, aggregated and misused for many purposes.
Senior advocate Rakesh Dwivedi, appearing for the Unique Identification Authority of India (UIDAI) and the Gujarat government, said in most of the cases, authentication is done only once. “For example, in case of PAN cards, it is once in a lifetime. For mobile sims, it is done only at the time of obtaining it. So, where this multiplication of authentication from morning to evening comes from,” the senior lawyer asked, adding, “realistically speaking, there is no trail of authentication from morning to evening. No real-time tracking is done”. He then asked the bench to examine the Aadhaar law on the ground of “reasonableness” and said as of now, there was no such possibility of aggregation and if any such things happens in future, the court may examine them at that time.
During the day-long hearing, the bench asked whether the storage of biometric and demographic details under Aadhaar law amounted to “invasion of right to privacy” and said “minimal intrusion with legitimate interests have to be ensured”. “Any system which involves biometrics will require storage of biometrics, either at a single point or multiple points,” Dwivedi replied. At the outset, Dwivedi referred to the provisions of Aadhaar law on enrolment and said Parliament was conscious of the fact the exclusion may happen and hence, section 7 provides alternatives to those who do not have Aadhaar. “My Lords, rest assured, there cannot be denial of service,” he said, adding that a person, who does not have Aadhaar number, can show the proof for enrolment application to avail services. “There is no question of denial. Denial is something that should not happen, ought not to happen. Though some more actions would be required to ensure this at the ground level,” he said, adding that the idea behind introduction of Aadhaar was inclusion and to ensure that persons come “face to face” with the authorities so that fakes are weeded out. If a person is unable to get ration due to failure of authentication, then any other family member can produce the Aadhaar number to get the benefits, he said.
The bench asked whether there were any isolated area in the country where Aadhaar services have not been reached and asked about its status in Jammu and Kashmir, Himachal Pradesh and Sikkim. The UIDAI said it will provide the figures on it. On the necessity of Aadhaar cards, the lawyer said it was part of the regulation and everybody would get recognised because of it and referred to the example of lawyers who are required to possess and produce ‘proximity cards’ to have access to the courts. “No right is absolute. Regulations are permissible,” he said, adding that even the apex court asks litigants to produce Aadhaar if they possess. The bench said there should be “a choice of identity” and if the choice to produce IDs is not there, this may violate proportionality test. Senior advocate Shyam Divan, who represents a former HC judge opposed to Aadhaar, responded to the plea of UIDAI counsel that Aadhaar was not being demanded for every transaction.
Divan said he does not have Aadhaar and was not allowed to open a fixed deposit account at the UCO Bank branch in the apex court premises. “Everybody is not capable of opening FD everyday. It is done only once or twice in a year generally,” UIDAI lawyer said. The counsel for UIDAI referred to the preamble of the Constitution and said there were two parts and the state has to ensure that a man survives and enjoys right to life. “Food is a part of dignity and so is privacy. When there is a conflict between the two, it has to be considered which should prevail. But why cannot we say that there is no conflict. Both are to be ensured,” the bench said. Dwivedi said the court is required to strike the balance between the right to privacy and right to life with dignity under Article 21 of the Constitution. He will resume his submissions tomorrow.