Aadhaar may be an enabler for people with no proof of identity: Justice Chandrachud

During the Aadhaar case hearing on Tuesday, Justice D.Y. Chandrachud observed Aadhaar may be seen by the government as an enabler for every Indian who does not possess even a single proof of identity.

“You may be wrong to assume that every Indian has one or the other proof of identity. Suppose the government was to assert that there is a large segment of society, like migrant labourers, who have absolutely no proof of identity... If that is so, then the Aadhaar policy of the government is an enabler,” Justice Chandrachud, one of the five judges on the Constitution Bench led by Chief Justice Dipak Misra, said.

“Aadhaar provides people with no proof of identity an opportunity to be enabled with an identity to access their entitlements,” he stated.

In answer to this, senior advocate Kapil Sibal, arguing for petitioners, said “if you have no proof of identity, you cannot get Aadhaar in the first place. Let us get this clear. The intent of the Aadhaar Act is not to give anyone the benefit of an identity. The Act is a mechanism to authenticate identities. And even then, why should the authentication of identity be linked to biometrics?”

The bench, headed by the Chief Justice of India Dipak Misra, is examining the constitutional validity of Aadhaar challenged in petitions which contend that the Aadhaar programme violates an individual's fundamental right to privacy.

"This judgment will decide the course that this country takes," Mr Sibal, also a senior Congress leader who is representing the West Bengal government in this case, said.

At one point, Justie A.K. Sikri tried to reason that biometrics was sought because the government viewed Aadhaar as a solution to the problem of fake identities.

“The government’s rationale seems to be that with other identity documents open to duplicity, let us have at least one identity with biometrics,” Justice Sikri told Mr. Sibal.

“If a person has a fake or duplicate ID like a passport or voter’s card, he should be dealt with separately under the law. Laws are broken and offences are committed in all civilised societies, that does not mean that those of us who do not want to breach the law are subject to the same restrictive conditions,” Mr. Sibal responded.

The arguments were led on how the government has made Aadhaar the only proof of identity, to the negation of all others like ration cards to passports to voter ID card, to avail of benefits, welfare, subsidies and services.

“So, ultimately you are saying that the violation in Aadhaar is an absence of choice. That is, Aadhaar takes away the right of a citizen to establish his identity by any mode,” Justice Chandrachud addressed Mr. Sibal.

Will we live in a country where there is choice - or do we live in a country where the State is the arbiter of choice," he said, trying to emphasize the far-reaching cnsequences the verdict might have, more than previously thought, and requested the bench to realize this while delivering judgment.

Mr. Sibal agreed, saying Aadhaar underscores an endeavour to make “the State our master and we its underlings”.

Mr. Sibal said restricting the identity of the citizen to one document — Aadhaar — was unconstitutional. He said the State takes away a citizen’s fundamental right to choice under Article 21 of the Constitution in order to enable him to exercise another fundamental right, for example, the right to travel.

At previous hearings, judges have remarked that there was a need to balance national interest and right to privacy. On other occasions, the court has indicated that it would not be inclined to rule against Aadhaar on the ground that it could be misused or that people could be denied benefits due to the Aadhaar law.

But Justice Chandrachud asked whether the government could impose “reasonable conditions” for permitting certain rights. He said the government made a condition that people who got government jobs should not form a union.

"The moment you impose a condition, you're denying a citizen of his rights. No defence can be taken from state like infrastructure is not in place," Mr Sibal said. But doesn't there have to be some proof of a person's entitlement to the facility, the judge asked.

Chief Justice Misra intervened to interpret Mr. Sibal’s submissions.

“If I have understood you right, you are trying to say that any restraint on a fundamental right must be within the constitutional framework... You are saying that to get the benefit of a fundamental right, no statute can ask you to surrender or barter another fundamental right,” the Chief Justice paraphrased Mr. Sibal’s arguments before the latter concluded his arguments in the case.

Senior advocate Gopal Subramanium began his arguments for the petitioners, emphasising the fundamental right of privacy upheld by a nine-judge Bench of the Supreme Court in August last. “Privacy is the soul of the self,” he submitted.

The arguments will resume on Thursday.