SC reserves order on pleas challenging Aadhaar

The Supreme Court on Thursday reserved its verdict on a batch of pleas challenging the constitutional validity of Centre's flagship Aadhaar scheme and its enabling 2016 law after a marathon hearing that went on for 38 days spanning four-and-half months.

A five-judge constitution bench headed by Chief Justice Dipak Misra, which had commenced the hearing on as many as 31 petitions, including one filed by former high court judge K S Puttaswamy on January 17, was informed by Attorney General K K Venugopal that this matter has become the 'second longest' one in terms of days of hearing after the historic Kesavananda Bharati case of 1973.

"The Kesavananda Bharati case was heard for five months and this matter continued for four-and-half months. This is the second longest hearing of a case in history," Venugopal told the bench, which also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

The Kesavananda Bharati case, which was heard by a 13-judge bench, by a majority of 7:6 had propounded the doctrine of 'Basic Structure and of the Constitution' had held that the amendments which may affect this structure were subject to judicial review.

At the outset on Thursday, senior advocate Gopal Subramanium advanced the rejoinder submissions and said Aadhaar was not an 'affirmative action' on the part of state to serve the people.

"Is the Act an enabler or is it in the guise of an enabler? The Act is not an instrumentality to deliver services. It is only a means of identification," he said.

"We have to read the true purpose of the law and whether the law seeks to achieve that purpose. Dignity and autonomy is not preserved by section 7 of the Aadhaar Act," he said.

Aadhaar Act did not have a proper purpose and "a claim to a proper purpose is not proper purpose", he said, adding that "Authentication is at the heart of the Act. Failure of authentication is a ground for denial of services."

The State seeks to take away the data without the backing of a strong data protection framework, he argued.

To this, the bench said the Act like Aadhaar needed a regulator which was presently absent.

The senior lawyer said private players have been allowed in the Act to have the access to Aadhaar data and moreover, there was no regime of protection.

"The Act is to be struck down completely as it fails all three tests laid down in the Puttaswamy judgement (privacy). There is no legitimate state aim as the real aim is different from the purported aim. There was no law when Aadhaar was implemented and there is no proportionality," Subramanium said.

Senior advocate Arvind Datar said the government did not need to arrest or detain a citizen as it can simply 'switch off' a person.

"Under Prevention of Money Laundering Act, Aadhaar is not just confined to banks but has gone beyond it's scope. Aadhaar is needed for mutual funds, insurance policies and credit cards as well, among other things.

"Only magic words like black money, national security and terrorism are being thrown around by the State. The justification of a law for proportionality cannot be a ritualistic exercise," Datar said.

A battery of senior lawyers, including Shyam Divan, Gopal Subramanium, Kapil Sibal, P Chidambaram, Arvind Datar, K V Vishwanath, Anand Grover, Sajan Poovayya and a few others, argued on behalf of petitioners opposing the Aadhaar Scheme on various grounds.

Besides the former HC judge, the top lawyers argued for petitioners, who included Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon, social activists Aruna Roy, Nikhil De, Nachiket Udupa and CPI leader Binoy Visman.

A key argument against the Aadhaar scheme was that it was violative of the nine-judge bench verdict that had held that the Right to Privacy is a fundamental right under the Constitution.

The Centre and the Unique Identificaiton Authority of India (UIDAI), the governments of Maharashtra and Gujarat and the RBI had argued in favour of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits And Services) Act, 2016 and were represented by the Attorney General, Additional Solicitor General Tushar Mehta, senior advocates Rakesh Dwivedi and Jayant Bhushan and lawyer Zoheb Hossain.

During the arguments, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.

However, the court had said that the government had misinterpreted its order and used it as a 'tool' to make Aadhaar mandatory for mobile users.

The court had also not agreed prima facie with the government's contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with 'targeted delivery of subsidies' for which funds came from the Consolidated Fund of India.

Divan, who had opened the arguments on behalf of the opponents, had termed Aadhaar as 'an electronic leash' and said that the government could completely destroy an individual by 'switching off' the 12-digit unique identifier number.

On the other hand, the Centre had said that the law was valid and allowed minimal invasion to ensure the right to life of millions of Indians by ensuring seamless delivery of subsidies, benefits and services to the poorest of poor.