Aadhaar Day 5: The Architecture of Aadhaar is capable of surveillance, says senior advocate Shyam Divan

On Day 5 of the Aadhaar hearing in KS Puttaswamy v Union of India before the Constitution bench of the Supreme Court, counsel for petitioner’s, senior advocate Shyam Divan explained that protection of personal data is of fundamental importance.  He progressed to justify his claim of the Aadhaar architecture being capable of surveillance by subjecting the Unique Identification Authority of India (UIDAI)’s defence of Aadhaar to critical scrutiny.

The UIDAI in its affidavit stated that there are privacy safeguards under the Aadhaar Act, and denies that any agency of the Government would be able to track or profile individuals by aggregating information. Senior advocate Divan, however, said that he found this too blanket a denial to be credible. He argued that biometrics are not only with the Central Identities Data Repository (CIDR), the government agency that stores and manages data for the Aadhaar project.

He pointed out that UIDAI supported the setting up of State Resident Data Hubs (SRDHs), which has the record of names of persons who enrolled, their location, and their Aadhaar numbers. He referred to SRDHs in Madhya Pradesh, Haryana, Odisha and Telengana.   He contended that when the SRDHs collate data, it enabled religious, caste-based and community profiling, and potential targeting of individuals, and a pervasive loss of privacy.

Senior advocate Divan then cited the case of S and Marper v United Kingdom, a case decided by the European Court of Human Rights, which held that holding DNA samples of individuals arrested but who are later acquitted is a violation of the right to privacy.

Justice Chandrachud questioned whether the State can’t have a legitimate concern in ensuring that the identity of the social welfare beneficiaries is maintained, in order to ascertain whether the benefits are reaching them.  Profiling political beliefs may not be its objective, he suggested.

Shyam Divan, disagreeing, said that the State’s legitimate concern in this case, could not  justify aggregation of personal data.  Justice Chandrachud, however, suggested that aggregation of personal data, in order to ensure social welfare benefits reach people, may not be a bad idea. Shyam Divan has assured the bench that he would reply to this point later.

In the afternoon, Shyam Divan, relying on the Supreme Court’s judgment in the Minerva Mills case, argued that the goals set in Part IV of the Constitution are to be achieved without abrogating Part III rights. 

Arguments will continue on Thursday, February 1.