Govt defends in Supreme Court its decision on Aadhaar linking with mobiles

SC said the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users

The Centre on Thursday strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the Supreme Court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.

However, the top court said the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.

A five judge constitution bench headed by Chief Justice Dipak Misra, hearing a clutch of petitions challenging Aadhaar and its enabling 2016 law, was told by Attorney General K K Venugopal that it was the specific direction of the apex court to the Centre to verify all SIM cards users within a year.

"The (February 6, 2017) order of the Supreme Court was the positive direction to verify the SIM cards," Venugopal said, adding that the failure on part of the government could have made it liable to be hauled up for the contempt.

The top law officer was responding to the apex court's earlier observation that it had not ordered mandatory linkage of Aadhaar and the government misinterpreted its order on a PIL filed by 'Lokniti Foundation'.

"In fact there was no such direction from the Supreme Court, but you took it and used it as a tool to make Aadhaar mandatory for mobile users," the bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, had said.

Venugopal then referred to the recent order of the court that had put on hold the mandatory linking of Aadhaar till a decision on the PILs and said that currently, the unique identity was not mandatory to obtain a new connection.

"We are waiting for the decision of the court. If the court allows it, there there will be no chance of forgery and fraud if Aadhaar is linked to SIM card," he said, adding that it will remain optional till the final disposal of the matters.

Later in the day, senior advocate Shyam Divan, appearing for former High Court judge Justice (Retd) K S Puttaswamy, referred to the technical experts' views on the technical aspect of the Aadhaar architectures and said that a real time surveillance of citizens was possible.

For the first time in a democracy, something like CIDR has been implemented and the apex court has to balance the human rights and new technologies that is capable of being misused, he said. Central Identities Data Repository (CIDR) is a government agency that stores and manages data for the country's Aadhaar project.

"You cannot have a surveillance state in a democracy. Identity of the person, date and time, and location are the three elements of surveillance," he said, adding that all the three can be known by using the Aadhaar technologies.

He then referred to the affidavit of the Centre filed on March 9 and said an expert report by Manindra Agarwal of IIT Kanpur has categorically said that breach of verification lock can lead to leakage of information about the location of transactions undertaken by a citizen during last five years.

"Experts on both sides now agree that surveillance is possible. It is not just a privacy issue. It is a limited government issue. How far does the coercive power of the state extend? It cannot extend to creating an infrastructure that is capable of tracking people...This is the real time surveillance," he said.

"UIDAI's presentation report says that biometrics database is accessible by third party vendors like Morpho, Accenture, identity solutions and one more. Breach of verification log leaks location of places where an individual did authentication," he said.

Can we have a law or system that sets up an authority that does not comply with the democratic norms, he asked, adding, "I am speaking about a rudimentary level of surveillance. I am not even talking about commercial surveillance."

"There is an inexorable march of technology. What are the kind of safeguards that we should take while balancing these rights is something we have to consider," the bench asked.

It was not that there was quantitative lack of food in our country and the problem was that people cannot access that food and it is the duty of the State to look into this aspect also, the bench said.

Divan then referred to the answers given to the queries by UIDAI CEO Ajay Bhushan Pandey and said Aadhaar was a "self certification or declaration system", because no government authority checks the identity records of the persons at the time of enrolment.

"UIDAI takes no responsibility for correct name, address, date of birth. Please consider, if this meets minimum standard of rationality," Divan said, adding "even an illegal immigrant can get Aadhaar as there is nobody from the government to check the authenticity of the documents submitted at the time of enrolment."

Divan would resume advancing rejoinder arguments on May 8.

Earlier, the court did not seem to agree with the government's contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds come from the Consolidated Fund of India.