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Aadhaar Scheme itself is bad and this leads to departing from determinist system to probabilistic system- Shyam Divan in Supreme Court.

January 18, 2018

Aadhaar card arguments of Sr. Advocate Shyam Divan before constitution Bench of Supreme Court

Hearing of Writ Petitions challenging implementation of Aadhaar Card started in Supreme Court continued today also. Yesterday, while addressing the Court Attorney General informed the court that there are 27 Writ Petitions related to Aadhaar card pending in the court four hearing. He suggested that it will be good if the court fixes specific time limit for counsels to complete their argument.

But Mr. Shyam Divan, Senior Advocate appearing for a batch of petitioners said that because of complexity and modules made it is difficult to maintain time. He said that Aadhaar project has been challenged and it has already sped 7 years. Even the Statues itself is under challenge. The Statues cover some part of projects not all. He said that he will be arguing for 3 petitioners have who filed petitions in 2013, 2016 and 2017.

He submitted to the court that said that Aadhaar scheme will track citizens and influence their behaviour. It Diminishes status off citizen. The citizen is denied most essential services after implementing Aadhaar. It completely upsets constitutional balance. Every day transactions are being recorded by the state.

He added that the Aadhaar act has been passed as a money bill. Some of the important points to be considered are whether aadhaar database compromises national security. What is the consequences of breaching order of this court. Elements of aadhaar not within the act. Different authorities have already issued 139 notifications under aadhaar act without considering the fact that there is a stay from the apex court for implementation of aadhaar scheme. Actions of Union of India mandating aadhaar link to mobile, pan are without considering the case pending in the Supreme Court.


He said that Personal body autonomy of citizens should not be hampered. Right of citizens should left alone.

On 18.1.2009 UAID was constituted. For 7 years worked under an administrative direction. In September 2010 the program launched. In 2013 the Supreme Court said its order that no person should suffer by the implementation of Aadhaar scheme. All the authorities were directed to modify forms etc. The Supreme Court allowed use of Aadhaar number for few schemes and directed that information should not be used for any other purpose. The Court also directed that Union of India will strictly follow all orders passed by the court. As per the order the Aadhaar card is not mandatory till final order in this matter.

But from January 2017 onwards Union of India issued various notifications to make aadhaar mandatory. Section 139aa of the Income tax was introduced. On 23.3.2017 notification issued for mobile verification. On 1.6.2017 it introduced for prevention of money laundering, made it mandatory for bank account for investment and life Insurance Policies. As per the act Aadhaar card is voluntary but it is being implemented as compulsory. Now the verdict of right to privacy is also there. Large no of people working in field found that Aadhaar is using for extrusion. Those who are doing manual works are not able to register their biometrics. In village areas citizens are required to travel to particular area of long distance for authentication. This creates unnecessary inconvenience to aged and physically challenged people.


He also said that some times people need to give finger print 3 or 4 times. The person may not be able to understand whether the account has been debited more than one time as the finger print is giving more than one time. He informed the court that 3 retired officers of Indian military have filed petition and warned that implementation of Aadhaar will be a threat to national security.

While implementing the Aadhaar scheme initial expectation was that rejection due to duplication will be very law. But actually it is 6.23 crore as on 15.1.2017.

He said that for verification a deterministic system should be there. UIDAI capture 10 finger prints, iris scan and photo. They don't compare identity. They will assess it on the basis of value judgment, which do not work 100%.

This leads to departing from determinist system to probabilistic system. Further there was no Government control when the information was collected. The process initiated without statutory backing. This whole program is completely bad till the statues come into force. The statute cannot be with retrospect effect. His answer to the question of court that if somebody travels to other country they will have record biometrics was that in other countries it will be recorded at entry point only and is not a a continuous process.

He added that design of Aadhaar scheme itself is bad. If the identity is stolen, it cannot be replaced. The argument that it will work as identity is not sustainable as there was only less than 3 lakh persons were in India without any identity documents in 2015. In fact United Kingdom has already abandoned the project. The larger question arises if the speaker certifies a bill as money bill whether the court can question it.


The other issue raised by Mr. Shyam Divan, Sr. Advocate is that scanning at the time of making Aadhaar card was done with high quality HD cameras but at the time of verification of aadhaar data low quality scanners are being used in different centers. It may cause rejection. Further the following points are also important:

1.Integrity of the process

2.Integrity of information

3.Integrity of Inversion of fundamental rights

4.Privacy concern Personal autonomy and information Compulsory seeking information

i). There is nothing in the form which suggests it is voluntary.
ii). No mention of biometrics in the form for preparing aadhaar
iii). No of declaration and verification are there.

All the information are being to given to private parties and There is no government verification there at all. Further Uidai has no contract with the agent. There is no statutory requirement and it is entirely private. As per aadhaar policy a resident can enroll with an introducer if no valid documents are available. Even Bank statements and pass book etc going to private party.




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