Skeleton/ Argument for Respondents

1. http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-20-of-
arguments-attorney-general-of-india-k-k-venugopal
1. SECURITY: State has put in an enormous effort to ensure security. Sixty committees have
been setup on this issue, since 2006, which have also examined alternatives to the
Aadhaar (such as a smart card). Serious efforts have been made to insulate deserving
beneficiaries from the effects of corruption. He argued that many countries have
adopted a unique identification system. The World Bank has looked into these in
its report called Identification for Development, where it has also referred to Aadhaar.
(Financial Inclusion) - supported Aaadhar sys. KYC sys - on paper WB considers that it’s
not a bad concept. Everything’s prospective - no leak has happened yet. (W’re saying it
wont happen)

Right to Life - conforms to the components of art 2 which is rt to live with dignity

individual right to privacy must give way to the right to distributive justice:
The Chief Justice interjected to say that Mr Venugopal’s argument seemed to be that the
individual right to privacy must give way to the right to distributive justice. Mr Venugopal
expanded on it, saying that in India the poor are invisible, upon which Justice Sikri asked him to
deal with this argument in the context of exclusion. Mr Venugopal responded that a lot of
NGOs have claimed presence of exclusion, but the Court has not heard from any affected
person. Justice Chandrachud interjected to say that individual rights are not subordinate to
distributive justice and gave the example of the Bengal Famine, (based on Amartya Sen's
argument that famines don't occur in democracies because of more free flow of information).
Mr Venugopal questioned what happened to the fundamental rights of poor people, such as the
right to exist without hunger. Would their right against lying on the pavement prevail over the
right to privacy? Justice Bhushan pointed out that the poor have an equal right to privacy, their
rights could not be violated any more than the rights of the rich. Mr Veugopal contended that
this is a question of balancing rights, and not a question of violation of rights.

Finds it’s genesis from the Wadhwa report:

This is in deference to the Article 21 right of the poor and seeks to advance the Directive
Principles of State Policy. He read out excerpts from the statement of objectives and reasons of
the Aadhaar Act, various reports on inclusiveness and the right to food, and the Supreme Court
Judgment on the Right to Food (PUCL v. Union of India), to further his argument on balancing
rights. He read out the portions where the Right to food case had made specific references to
the DP Wadhwa Report and recommended computerisation of PDS. The Court had asked Mr
Nandan Nilekani to suggest ways of computerising the PDS, who then conceptualised the
UIDAI.

Idea got validation from this case:

Binoy Viswam v. Union of India to say that the objectives of Aadhaar had been endorsed by the
bench comprising Justices Sikri and Bhushan. The judgement referred to Jean Dreze and
Amartya Sen on the need for sustainable development. It spoke about ‘ghosts’ in the system,
cracking down on black money and money laundering, the problem of multiple PAN numbers,
and the benefits of a centralised system like the UIDAI to combat all these. Mr Venugopal
pointed out that Binoy Viswam (prosecutor of India) had said that Aadhaar is the most robust
way to achieve de-duplication.

He emphasised that India is a welfare state and the government will not exclude anybody
Just to show how imp it is
Mr Venugopal returned to the ‘highly researched’ Identification for Development Reportwhich
makes it clear that there cannot be second thoughts of the benefits of Aadhaar.
The Foreword to the Report says that official identification is more than a convenience - it is a
fundamental human right. A lack of identification adversely affects women and children
specifically.

http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-21-of-arguments-
attorney-general-k-k-venugopal-and-ajay-bhushan-pandey-ceo-of-uidai

Aadhaar is the solution for many people who did not have a nationally acceptable
identification. Moreover, many IDs have their limitations. For instance, children cannot have
voter IDs. Obtaining a ration card was difficult because it required other IDs to be submitted.
Moreover, he said, Voter ID and ration cards are region specific and not nationally accepted.

Next, Mr Pandey explained that no one is denied enrolment for lack of biometric submissions.
Only certain exceptions, in appropriate cases, were considered: At this point, Justice
Chandrachud wanted to know how a biometric exception is authenticated. Mr Pandey
responded that other modes of authentication are used, such as a One Time Password (sent to
the mobile phone) or authentication of the demographic information. He explained that there
are 13 modes of authentication, if you consider 10 fingers, 2 iris scans and the OTP.

Las t Resort : Day 22:

What ground are they contesting it on? - would be major data leakage
There has been no major data leakage -> no infringement of no rt to privacy as such
We will make sure. It is our duty
Presumption can’t act as the only reason to hold the whole act unconstitutional
Not violating RTP
Why Aadhar is imp - in turn supporting constitutionality of Aadhar
Inclusive not exclusive -
It’s presence also affirms certain FRs
It’s absence would also lead to breach of certain rights

Feature of Aadhaar. Given by the website, people pro-aadhar, People auth to speak on behalf
of aadhar

http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-23-of-arguments-
k-k-venugopal

Privacy case:
• The Supreme Court has held that a valid law cannot be found unconstitutional merely on the
grounds of faulty implementation.
• (Chandrachud) the tests for privacy that he laid down are satisfied by the Aadhaar Act - The
Act is for a specific time period, it is for a legitimate state interest, and it is proportional. In
the absence of serious negative consequences, the Aadhaar Act satisfies the requirements
for constitutionality.
• Justices Chelameswar and Bobde had recognised that privacy is not absolute, and a
legitimate state interest could override it. The subsidies under Section 7 are part of the right
to a life with dignity and should prevail over the right to privacy. Justice Nariman's opinion
from the privacy judgement, that whichever article is applicable in a particular case of
privacy, the corresponding restrictions will apply, and ultimately the Court must undertake a
balancing exercise. The test of proportionality must be applied in this case. The petitioners
must establish that this test has not been satisfied.He cited the Right to Information Act as a
reasonable restriction on privacy in the larger public interest. As privacy is a fundamental
right under Article 21, it is subject to the limitations of the same article. The test of
proportionality must be applied in this case. The petitioners must establish that this test has
not been satisfied.
• Mr Venugopal said that the Aadhaar Act has adequate safeguards. It is a just, fair, and
reasonable law. It is in pursuance of a larger public interest, including preventing dissipation
of social welfare benefits, restricting black money and money laundering, preventing income
tax fraud, and lastly, preventing terrorism - all legitimate state interests. The Supreme Court
cannot second guess the value judgement of the legislature.
• The Supreme Court cannot second guess the value judgement of the legislature. - ??

http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-24-of-arguments-
k-k-venugopal

Judicial overreach
Matters of tech expertise
Leg state interest

State of Proportionality
Justice Sikri pointed out that the petitioners are challenging the Aadhaar Act on the alleged
absence of proportionality. To this, Mr. Venugopal responded that the State has a legitimate
state interest in rolling out the Aadhaar Scheme. He said that the entire challenge was whether
the Aadhaar scheme is safe and secure. The state has already proved that it is a secure scheme.
The technology and security would be updated as and when required.

Mr Veugopal argued that policy decisions of the Government are not subject to judicial review.
The three organs of the State should have mutual respect for each other in a democracy. He
warned that the process of development will slow down if there is a judicial review of every
administrative action. Courts should not interfere in matters of technical expertise. The Courts
must only expound the language of the act.

Mr Venugopal cited Whalen v. Roe, in which the Supreme Court of the United States held that it
cannot be assumed that state security provisions would be improperly administered. Justice
Sikri pointed out that the position in Europe is diametrically opposite. He read excerpts
from People v. Stuller and Buchanan v. Wing, in support of his arguments. Chief Justice Misra
said that Buchanan is not relevant since no one was arguing against the collection of
fingerprints in a criminal investigation.

http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-25-of-arguments-
k-k-venugopal

He read from a Fordham Law Journal article to argue that automated finger imaging does not
violate privacy. He emphasized that finger imaging technology is 99.9% accurate.

Mr Venugopal argued the right to privacy and the other rights are competing, and the court
must balance the two competing rights. He argued that the right to food, employment, medical
care and other services take precedence over the right to privacy. He questioned how the right
to privacy could be invoked to deprive other sections of the society. He cited X v. Hospital
Z where the right to privacy was balanced against the right to information. A man suffering
from HIV had the right to non-disclosure, but the court had held that his fiancée’s right to know
of his disease took precedence.

Justice Sikri pointed out that this was a case of balancing the rights of two individuals, while in
the case of Aadhaar, the state is giving a person food in exchange for their privacy. Mr
Venugopal reiterated that the invasion of privacy is so minimal in Aadhaar, that it could not
even be considered an invasion. The bare minimum data is taken from an individual. He
reiterated his argument that the basic right to life under article 21 could not be challenged on
the ground that we have a right to privacy. Justice Bhushan pointed out that ‘minimal invasion’
is very subjective. What may be minimal for ‘A’ might not be minimal for ‘B’. Mr Venugopal
asked the court to look at the information taken from objective standards, in the larger interest
of the country

RTL -
BPL card

other benefits LINK TO

RTL

aRT to life art 21 - relate to whole act not just part of it

http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-26-of-arguments-
k-k-venugopal-and-tushar-mehta

To emphasise that invasion of privacy is minimal, Mr Venugopal said that the UIDAI had refused
to provide biometric data to the CBI, in connection with a rape, saying that biometric data could
not be shared without the individual's consent. The UIDAI in that situation had complied
with Justice Chandrachud's principle of ‘reasonable expectation of privacy’ in the Right to
Privacy judgement. The state would not collect biometric information except for the benefit of
the individual himself.

Next, Mr Tushar Mehta began his arguments. He is representing and arguing for the UIDAI. He
began by stating that in the Right to Privacy judgement, all nine judges had affirmed that right
to privacy is not absolute and can be reasonably restricted. Secondly, an Act can be invalid if it
fails the test of proportionality or the test of manifest arbitrariness. These tests have been
examined, although in the context of Article 19, in the Binoy Viswam case, where the Court
exhaustively examined the issue of PAN-Aadhaar linkage.

http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-27-of-arguments-
mr-tushar-mehta

Answer to larger public interests test

To answer the court’s question on why the government is treating the entire population as
potential criminals, Mr Mehta quoted US Court of Appeals judgments that suggest that frisking
passengers or putting up checkpoints are not suggestive of rampant criminalality in a
community. He argued that the aim is not to treat everyone as a terrorist but to safeguard the
larger public interests.

Mr Mehta argued that in a ‘competition’ between the right to privacy and the right to
information about a citizen, the latter prevails for the sake of larger public interest. He
quoted Narayan Dutt Tiwari v. Rohit Shekhar which held that privacy is not absolute and can be
invaded to fulfil a larger interest. He also quoted the Subramanian Swamyjudgement to argue
that fundamental rights can be reasonably restricted. In X v. Hospital Z, privacy was held to be
subordinate to the right to information.

Mr Mehta argued that balancing of fundamental rights is the constitutional duty of the Court.
The needs of the society must drive the reasonable restrictions. As held in Om Kumar v. Union
of India, limitations on fundamental rights are constitutional if the measures taken are
necessary and proportional. “The right to move your fist stops when my nose begins”, he said.
Even the fourth amendment to the American Constitution does not safeguard all expectations
of privacy, but only ones that are reasonable. This has been held in Vernonia School District 47J
v. Acton. Further, the right to privacy in the European Convention of Human Rights is also not
absolute and can be curtailed for the purpose of national security. - *****

http://scobserver.clpr.org.in/court-case/constitutionality-of-aadhaar-act/day-28-of-arguments-
asg-tushar-mehta-and-rakesh-dwivedi

On the 27th day of arguments, ASG Mr. Tushar Mehta had argued that the Aadhaar Act
satisfied reasonableness and proportionality. He argued that the court must look at the balance
of interests, and in the ‘larger public interest’ uphold the Aadhaar Act.

Mr Dwivedi replied that Google and Facebook algorithms cannot be compared with UIDAI
technology. To this, Justice Chandrachud said that the Act does not preclude UIDAI acquiring
that kind of technology. Mr Dwivedi responded that it is an offence under Section 33 of the
Aadhaar Act. The only purpose of Aadhaar is authentication. There is no power to analyze data,
under this Act. Even the metadata relates to authentication records and does not reveal
anything about an individual. The metadata only consists of the details of the authentication
request, the result of the authentication procedure, and the time of authentication. Justice Sikri
said that this information is enough to reveal a lot about an individual. Mr Dwivedi responded
that the authentication request may show the place of authentication request (for example -
Apollo hospital), but not the location from where it came. The identity of the person who has
requested the authentication is also not revealed.