NEW DELHI: A law cannot be declared unconstitutional just because it could be misused, a Supreme Court judge said on Tuesday during the hearing in the crucial Aadhaar case. The five-judge constitution bench had heard senior lawyer Kapil Sibal outline how the 12-digit biometric data-based Unique Identification number could put privacy of citizens at risk.
In making this argument, senior lawyer Kapil Sibal, appearing for one of the petitioners, invoked Prime Minister Narendra Modi’s statement at the World Economic Forum meeting that “a country which controls data, controls the world”.
“I agree with the Prime Minister,” Mr Sibal, also a senior Congress leader said, underlining that the court’s decision to allow the Aadhaar law to succeed would “have a far-reaching effects” and “affect future generations”.
The constitution bench is hearing a batch of petitions against Aadhaar, the earliest one filed back in 2012, that contend the scheme violates an individual’s fundamental right to privacy. A 2016 law that empowers the government to force people to enrol for the number to access not just public benefits and services has also been challenged.
“Aadhaar is nothing but right to Information for the state,” the former Union Minister said, asserting that “information is power and if the power is given to state, it will use it like never before”.
Mr Sibal also suggested that Aadhaar’s utility for national security had been exaggerated. “Aadhaar can’t identify whether a person is a terrorist or a money launderer unless you have information of the crime,” he said.
But Justice DY Chandrachud wasn’t convinced.
Justice Chandrachud, one of the five judges hearing the case, said there were a long line of judgments of the Supreme Court that “mere possibility of misuse will not lead to striking down a legislation”.
Mr Sibal argued that the Aadhaar law is an exception to these rulings of the top court because the law was already being misused or abused. “It is happening everyday”, Mr Sibal said.
“The power of misuse is no ground to declare a law unconstitutional. Striking down a legislation is a problem for us,” Justice Chandrachud shot back. For the court to strike down a law, “you must say (establish) that it is a colourable (arbitrary) legislation”, he said.
COMMENTSTo the many points about the risks that Aadhaar law would continue to pose, the judge wondered if the law itself was expected to provide the level of risk. “In the absence of technologically assured safe environment what level of risk is acceptable and what level of risk not acceptable. How can this court determine?” he said.
Mr Sibal said the state itself may not want to misuse a citizen’s data but “once the data is available in the public domain, it can be misused by private players. The data is available with banks and telecom service providers. Once you make the data public, it can’t be retrieved”.