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A five-judge constitution bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan referred to Section 2(g) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, and told attorney general K K Venugopal that biometrics could never be invasive.
Section 2(g) provides the definition of ‘biometric information’ and says it means “photograph, fingerprint, iris scan, or such other biological attributes of an individual as may be specified by regulations”. The Act thus permits the government to add in future to the list of biometric details that the Unique Identification Authority of India (UIDAI) can require a citizen to part with during enrolment.
“You (the government) cannot take blood and urine samples of individuals in the name of collecting biometrics for enrolling her/him with Aadhaar. It (biometrics) has to be non-invasive,” CJI Misra said.
The SC also asked if voluntary enrolment could mean waiving of right to privacy. On the question of those who enrolled prior to Aadhaar Act, 2016, the Centre had argued that persons who had done so by waiving off their fundamental right to privacy, could not now claim violation of their rights. But the CJI said, “If you (the government) say fundamental rights can be waived off voluntarily, and if we uphold it, it will lead to very grave consequences.”
Venugopal argued that biometrics taken for Aadhaar at present constituted minimal invasion of privacy. Justices Sikri, Chandrachud and Bhushan said while deciding the validity of Aadhaar, the court could not lose sight of the need to protect an individual’s right to privacy, which a nine-judge SC bench has declared as part of right to life, and would have to apply the doctrine of proportionality.
The AG said when Aadhaar was formulated and implemented, right to privacy had not been recognised by the apex court as a fundamental right. Importantly, at that time, an eight-judge bench ruling that privacy was not a fundamental right held the field. “So, it would not be correct to test Aadhaar, which was formulated prior to the nine-judge bench ruling, with right to privacy as a fundamental right,” he said.
Allaying apprehensions about possible sharing of biometrics by UIDAI with others, the AG cited a Goa rape case where a trial court wanted CBI to access biometric details of all residents of Goa to match fingerprints lifted from the crime scene. He said even the HC had upheld the trial court order but the UIDAI persistently resisted and succeeded in getting a stay on the HC order in the SC.
Appearing for UIDAI, additional solicitor general Tushar Mehta said Aadhaar had fundamental benefits by stopping frauds that had been committed in the past. He said a woman had conspired with a photo studio to gather 3,000 photographs of individuals and used them to open over 3,000 fictitious demat accounts. Mandatory linking of demat accounts with Aadhaar rendered these fictitious accounts non-operational, he added.
Mehta said maximum possible security was accorded by the UIDAI for safe storage of Aadhaar data. “But there is nothing called fool-proof in this world where hackers, a report said, manufacture 10,000 new viruses every day. Despite Section 302 of IPC punishing murderers with death or life sentence, it has not been able to stop murders,” he said. The bench agreed and said, “It is virtually a cat and mouse game.”