‘An executive authority may even expand the meaning of biometrics’

Justice D.Y. Chandrachud pointed out how the Aadhaar Act could allow the State, in future, to seek DNA, hair and even semen samples from citizens as “biometric information.”

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The judge, part of the five-judge Constitution Bench led by Chief Justice Dipak Misra hearing the challenge to the biometric ID programme, was referring to the open-ended language of Section 2(g) of the Aadhaar Act, which defines biometrics.

In fact, Section 2 (g) defines “biometric information” as “photograph, finger print, iris scan, or such other biological attributes of an individual as may be specified by regulations.” The Act does not specify what the phrase ‘other biological attributes’ means. Nor does the Act prescribe any limit to biometric information. As of now, iris and fingerprint scans are taken.

But Justice Chandrachud said an executive authority could even “expand” the meaning of biometrics through an administrative order.

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The judge asked Attorney-General K.K. Venugopal on Thursday whether Section 2(g) did not amount to “excessive delegation” of power to an executive authority. Mr. Venugopal said the biometric system was safe and accurate and would help to prevent money-laundering, bank frauds and income tax evasion. But the court countered that Aadhaar was not a panacea for every crime.

Justice A.K. Sikri countered that bank frauds, causing losses of up to thousands of crores, was not facilitated by the perpetrators with multiple identities. These frauds occurred for lack of diligence on the part of banks and because bank employees were hand-in-glove with the perpetrators. Mr. Venugopal agreed that “incidents like Nirav Modi” would not have happened had banks shown due diligence.

Justice Chandrachud agreed with Justice Sikri that Aadhaar was not meant to prevent or detect bank frauds. “We can understand when you talk about frauds in welfare schemes, but in the case of bank frauds, we don’t see what Aadhaar can do,” Justice Chandrachud said. “But if Aadhaar is linked to bank accounts, whenever there is a transaction it will be revealed,” Mr. Venugopal said.

‘Tax evasion must end’

Justice Chandrachud said welfare benefits should reach the poor while money-laundering and tax evasion should end. “But can you extend Aadhaar for every transaction? Whether this will meet the test of proportionality,” he asked.

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The court questioned the government’s logic that the Aadhaar-mobile phone linking would help to check terrorism. Justice Sikri said an entire population could not be viewed as defaulters. He challenged the government’s argument that the right to food, employment and medical care superceded the right to privacy. The judge likened the exchange of right to food for individual privacy to “slavery.”

Mr. Venugopal argued that Aadhaar would help to combat poverty. Justice Sikri said the gap between the rich and the poor was widening, with 70% of the wealth lying in the hands of a mere 1% .