Looking to define the limits that will regulate Aadhaar, the Supreme Court told the Centre on Tuesday that even if it upheld the unique identity number scheme, biometrics collected at the time of enrolment of a resident of India would have to be noninvasive. A five-judge Constitution bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan referred to Section 2(g) of the Aadhaar Act, 2016, and told attorney general K K Venugopal that biometrics could never be invasive.
Section 2(g) provides the definition of “biometric information” and says it means “photograph, fingerprint, iris scan, or such other biological attributes of an individual as may be specified by regulations”. The Act thus permits the government to add in future to the list of biometric details that UIDAI can require a citizen to part with during enrolment. “You (the government) cannot take blood and urine samples of individuals in the name of collecting biometrics for enrolling her/him in Aadhaar. It (biometrics) has to be non-invasive,” CJI Misra said.
The SC also asked if voluntary enrolment could mean waiving right to privacy. On the question of those who enrolled prior to the Act, the Centre had argued that people who had done so by waiving their right to privacy could not now claim violation of their rights. But the CJI said, “If you say fundamental rights can be waived off voluntarily, and if we uphold it, it will lead to very grave consequences.”
Govt cites Goa case, says privacy not at risk
Venugopal argued that biometrics taken for Aadhaar at present constituted minimal invasion of privacy. Justices Sikri, Chandrachud and Bhushan said while deciding the validity of Aadhaar, the court could not lose sight of the need to protect an individual’s right to privacy, which a nine-judge SC bench has declared as part of right to life, and would have to apply the doctrine of proportionality.
The AG said when Aadhaar was formulated and implemented, the right to privacy had not been recognised by the SC as a fundamental right. Importantly, at that time, an eight-judge bench ruling that privacy was not a fundamental right held the field. “So, it would not be correct to test Aadhaar, which was formulated prior to the nine-judge bench ruling, with right to privacy as a fundamental right,” he said.
Allaying apprehensions about possible sharing of biometrics by UIDAI with others, the AG cited a Goa rape case where a trial court wanted the CBI to access biometric details of all residents of Goa to match fingerprints lifted from the crime scene. He said even the HC had upheld the trial court order but the UIDAI resisted and succeeded in getting a stay on the HC order in the Supreme Court.
Appearing for UIDAI, additional solicitor general Tushar Mehta said Aadhaar had fundamental benefits by stopping frauds that had been committed in the past. He said the maximum possible security was accorded by the UIDAI for safe storage of Aadhaar data. “Despite Section 302 of IPC punishing murderers with death or life sentence, it has not been able to stop murders,” he said. The bench agreed and said, “It is virtually a cat-and-mouse game.”