Aadhaar order Analysis: In 10 years, dissenting voice would find support, predicts jurist

Even as the verdict of the majority on the Supreme Court bench that heard the long, complicated and unprecedented case upheld the constitutional validity of Aadhaar, the lone dissenting voice from Justice DY Chandrachud cheered all activists against it, ranging from privacy advocates to political experts. To them, the dissenting verdict gave clarity to the crucial issues, which are sure to return.
Aadhaar order Analysis: In 10 years, dissenting voice would find support, predicts jurist
(Inset: Justice D Hariparanthaman)


Hailing Justice Chandrachud’s verdict, retired Madras High Court judge D Hariparanthaman said it would have been historic judgement if the dissenting voice was taken into consideration. “I feel his judgement is correct. It would have been historic, if his opinion was taken into consideration,” Justice Hariparanthaman told DT Next.
Echoing views similar to that of Justice Chandrachud, he questioned the move to implement the unique identification project without giving the Rajya Sabha a chance to debate the matter. According to him, the Centre preferred the ordinance route to bring in the scheme, as it was clear that the scheme could not be undertaken by enacting appropriate legislation.
“Justice Chandrachud’s comments will come to real in the future,” said the former judge, appreciating the remarks that Justice Chandrachud made in the verdict while questioning the Act being introduced as a Money Bill. In this route, the Parliament do not get the opportunity to discuss and debate the proposal. “Aadhaar is only an identity. How come the Centre tag it as Money Bill?”
He also predicted that there was a possibility that Chandrachud’s judgment could be implemented in the future. “After 10 years, his judgement will be supported,” he added.
While the four others on the bench backed the Aadhaar project, Justice Chandrachud strongly opposed its implementation, terming the idea as having inherent risks to individuals’ privacy, the method illegal and a fraud on the Constitution, and at a price too high for the poor to afford. 
Key points from Justice Chandrachud’s verdict
True to the spirit of democracy, Justice DY Chandrachud delivered a dissenting judgment on the validity of Aadhaar, raising a host of concerns about the system and the path that led to its implementation. These excerpts make it clear that the issues that he raised are likely to return to public sphere for further discussion and debate in the future – perhaps not too far away: 
  • The source code [for the deduplication technology] belongs to a foreign corporation. UIDAI is merely a licensee. Prior to the enactment of the Aadhaar Act, without the consent of individual citizens, UIDAI contracted with Identity Solutions (the foreign entity which provided the source code for biometric storage) to provide to it any personal information related to any resident of India. This is contrary to the basic requirement that an individual has the right to protect herself by maintaining control over personal information. 
  • “It has been provided in the contract that Identity Solutions would indemnify UIDAI against any loss caused to it. However, the leakage of sensitive personal information of 1.2 billion citizens cannot be remedied by a mere contractual indemnity. The loss of data is irretrievable. In a digital society, an individual has the right to protect herself by maintaining control over personal information. The protection of data of 1.2 billion citizens is a question of national security.
  • When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. For instance, when an individual from a particular caste engaged in manual scavenging is rescued and in order to take benefit of rehabilitation schemes, she/he has to link the Aadhaar number with the scheme, the effect is that a profile as that of a person engaged in manual scavenging is created in the scheme database. The stigma of being a manual scavenger gets permanently fixed to her/his identity. What the Aadhaar Act seeks to exclude specifically is done in effect by the mandatory linking of Aadhaar numbers with different databases, under cover of the delivery of benefits and services. 
  • From the verification log, it is possible to locate the places of transactions, [and] track the current location of an individual, even without the verification log. The architecture of Aadhaar poses a risk of potential surveillance activities through the Aadhaar database. Any leakage in the verification log poses an additional risk of an individual’s biometric data being vulnerable to unauthorised exploitation by third parties. 
  • The Aadhaar project has failed to account for and remedy the flaws in its framework and design which lead to serious issues of exclusion. Dignity and rights of individuals cannot be based on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology.

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