Aadhaar Day 8: The State does not have the right to make a citizen so vulnerable”, says Kapil Sibal

As the Aadhaar hearing resumed on Wednesday, senior advocate Kapil Sibal, appearing on behalf of petitioner Raghav Tankha and another, submitted that Section 8(3)(c) of the Aadhaar Act of 2016, which speaks of ‘alternatives to submission of identity information to the requesting entity’, has been wrongly drafted as the definition of ‘authentication’ in section 2(c) of the Act leaves no room for any alternatives.

Justice Bhushan questioned the ‘one nation, one identity’ concept. To which Kapil Sibal responded stating that the concept of identity is unconnected to being Indian.

Justice D. Y. Chandrachud also stated that the definition of ‘identity information’ in section 2(n) of the Act was an inclusive definition and not an exhaustive one that envisaged data in addition to the biometric and demographic information.

Mr. Sibal touched upon section 57 of the Act of 2016, which permits any ‘body corporate’ or other person, besides the State, to require the Aadhaar number for establishing the identity of any individual, pursuant to any law or even a contract to that effect- “It is gravely unconstitutional to entitle even private entities to mandate Aadhaar.”

Further, Mr. Sibal proceeded to draw out the distinction between ‘data’ and ‘metadata’- “‘data’ constitutes the content of any communication, while ‘metadata’ is only the information about any message/communication without its actual content. It is an incorrect notion that ‘metadata’ alone cannot compromise the right to privacy. A sufficient quantity of ‘metadata’ can divulge a substantial amount about the ‘data’”.

He stated that Aadhaar is now being mandatorily linked with every train travel by the IRCTC as well as with each air travel. He indicated that this linkage makes the metadata available which is enough to track an individual throughout their lifespan. “The State does not have the right to make a citizen so vulnerable”, he submitted.

He advanced claims regarding the sharing of data with foreign technology developers, and stated that the contracts with foreign corporations would be produced before the court.

Mr. Sibal mentioned the security concerns associated with the State Resident Data Hubs, which are parallel databases and how Aadhaar infringes privacy of the physical space by revealing location; and its susceptibility to corporate espionage by competing firms.

The hearing will resume on Thursday.