With Aadhaar Act, consent is illusory: Kapil Sibal in Supreme Court

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From: Indian Express By: Express News Service Published at: February 13, 2018
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The Supreme Court on Tuesday sought to know whether the right of people to remain anonymous will come in the way of the state identifying beneficiaries for providing social welfare benefits.

“You are claiming that preservation of anonymity is part of Article 21. Ancillary question to this would be whether that would not come into conflict with the identification of beneficiaries for social welfare measures,” Chief Justice of India Dipak Misra asked senior advocate Gopal Subramanian, who was appearing for some of the petitioners.

CJI Misra is heading a five-judge Constitution bench hearing a batch of petitions challenging the Aadhaar Act.

Subramanian said that privacy includes dignity, and anonymity is an “important aspect of dignity”. He contended that Constitutional mandate is in favour of protecting the identity of marginalised sections who are entitled to state benefits.

Earlier, senior advocate Kapil Sibal, representing the West Bengal government, said even the identity programme followed by Israel had provisions for both who give consent and those who do not. But with Aadhaar Act, he said, “consent is illusory”.

Sibal said, “I don’t think anybody can say the state cannot ask for an identity. But it should be such as to ensure my identity is not in public place…is not centralised.”

While issues such as national security, revenue etc are important, there is also the question of personal information, he submitted. “My fundamental identity is that I am a citizen of this country. My name is on the electoral roll, which is part of my citizenship. How then can they say, ‘unless you have Aadhaar, we won’t accept voters ID’,” he asked.

Sibal said, “(The) state cannot choose how I prove my citizenship. Nobody can question that. Proof of citizenship is my choice.” He said arguments that Aadhaar can be used without authentication is “completely wrong”, as “every other act requires authentication”.

Sibal also raised the question of proportionality, saying there is no nexus between the Act and the object that was sought to be achieved by it.

Justice Sikri pointed out in South Africa, they call it the culture of satisfaction. “Parliament can pass laws, but state has to justify that”, the judge said.

Sibal said, “If somebody deactivates Aadhaar, the person ceases to exist. How can you justify such a power?If State cannot ensure PDS reaches the right people, why should I have Aadhaar? Failure of the State cannot be the basis of a monolith of this nature.”

The senior counsel contended that making the unique identity mandatory had no nexus with providing subsidies. Referring to Section 7 of Aadhaar Act, which empowers the government to require a person to furnish Aadhaar for giving benefits, services or subsidy for which the expenditure is incurred from the Consolidated Fund of India, Sibal asked what then will be the status of a public-private partnership project. He wondered whether Aadhaar would apply in such cases, even though the public quotient is fractional.

“Almost all activities of civil society will be monitored,” he said. “We are creating a giant that’s bigger than the state.”

The statute, he said, affects our fundamental rights because it affects out livelihood. “Therefore the test has to be far more stringent.”

Sibal referred to the case of a woman had to give birth outside a hospital in Gurgaon since she had been turned away for not possessing Aadhaar. He said it was a violation of her fundamental right to health. “Aadhaar becomes condition precedent…the procedure is neither fair, nor just. It is burdensome,” he said.

He said the argument that a person can prove her identity only with Aadhaar amounts to extinguishing her fundamental right.

Justice D Y Chandrachud pointed out that there are a large number of middle-class people who settle abroad after retirement, and asked, “Is it so that if they don’t come back and authenticate, they won’t get pension?’

To the argument that Aadhaar limits the choice of an individual and restricts his rights, Justice Chandrachud said that when people apply for a government job, they also undertake not to engage in any profession that conflicts with it. “That is also surrendering their rights,” he said.

Justice Chandrachud said this “argument presupposes every Indian today has with him or her some form of identity. Can we make that assumption? Large sections (of Indians live) without any identity…. For them minus this, there is no access to social welfare measures.”

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