Aadhaar Day 6: “There is no question of checks and balances as it is an architecture of pervasive surveillance”, says Shyam Divan

On day 6 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 advanced the following arguments:

  • He challenged the specifications of the UIDAI scheme, calling Aadhar a surveillance system, and the state being able to track the movements of its citizens. He went on to state that the Indian Constitution repudiates mass surveillance.
  • Reliance was placed on decisions of the European Court of Human Rights on surveillance and retention of biometric data.
  • On being questioned about the harm of data being gathered in one place, rather than the scattered manner in which the government holds it even today, Mr Divan, challenged the whole centralisation of data, stating it earlier existed in silos, but the “maintaining of logs” (which has been specifically disallowed by the ECHR in the Digital Rights judgment) would lead to a system where the government can completely track every single individual.
  • Stating that if the judges looked 25 years ahead, the system of maintaining a log would brand them as “Aadhaar Judges”. All facilities from schools, scholarships and air travel are planned to be linked, which is unnecessary.
  • The defects in the system could be used to exclude a citizen from the state’s benefits, and that the whole system was something a free and liberal society would never support. When asked if norms governing the data would help, Mr. Divan said, “There is no question of checks and balances as it is an architecture of pervasive surveillance.”
  • Mr Divan went on to argue that the scheme is one which does not trust its citizens, and then quoted the importance of limiting legislative power to protect the rights of citizens. He also highlighted that the Notification constituting the UIDIA in 2009 never mentioned anything about fingerprints and biometric data. The ID of Prisoners Act and Bombay Habitual Offenders Act created rules for collecting fingerprints, which were all violated by Aadhar.
  • The Challenging the benefits of the LPG scheme, the recent CAG report was relied upon. Glitches in the system and how they’ve negatively impacted the lives of farmers, pensioners, etc. were brought to the forefront.