“In the era of information technology, the question of possibility of misuse is not just a possibility. It will be misused,” said Kapil Sibal (Express Photo/Deepak Joshi/File) “In the era of information technology, the question of possibility of misuse is not just a possibility. It will be misused,” said Kapil Sibal (Express Photo/Deepak Joshi/File)

Former Union Information Technology Minister Kapil Sibal on Tuesday argued against the move to make Aadhaar mandatory, saying the data collected for it was prone to misuse in the world of information technology. “In the era of information technology, the question of possibility of misuse is not just a possibility. It will be misused,” the senior advocate told a five-judge Constitution bench headed by Chief Justice of India Dipak Misra on day seven of the arguments on petitions challenging the constitutional validity of the Aadhaar Act.

Sibal, representing the West Bengal government and two other petitioners, said this when Justice D Y Chandrachud pointed out it has been earlier held that mere apprehension of misuse of a law is no ground to strike it down. “There is a strong line in India that possibility of misuse of a law by itself will not lead to striking it down,” Justice Chandrachud said.

Sibal said Prime Minister Narendra Modi said in Davos recently that “he who controls data controls the world”. He added, “I accept that. And he who controls data in India will control India. Information is power and information in the hands of the state will create a state which will exercise power like never before.”

He claimed that the exercise to make Aadhaar mandatory was backed by commercial motives. “This whole thing is being pushed by conglomerates beyond our borders to sell their products…They can know their customers and customise their products,” he said.

The senior advocate claimed that the Central Identities Data Repository (CIDR), which stores biometric details of subscribers, “is controlled by a foreign entity”. He submitted he would give the name of the entity to the court and added “software is provided by the foreign entity”.

Sibal argued that the digital world was far more susceptible to tampering than the physical world and that no law can allow an individual’s personal data to be put at risk in the absence of a technologically assured atmosphere. He added that such level of assurance was impossible to attain in digital space. To this the court pointed out, “How can we decide what is technologically assured atmosphere?” Sibal replied, “State may not want to misuse, but my information is in public domain, anybody can misuse.”

The counsel submitted that Section 7 of the Aadhaar Act says the government may require authentication from residents only for the purpose of receiving subsidy, benefit or service for which the expenditure is incurred from the Consolidated Fund of India. Hence, it cannot be used for anything else, he contended. He argued that in the US, there was a debate on whether the government using details of individuals from Google will amount to search and seizure which is embargoed by the 4th amendment.

Justice A K Sikri pointed out that the government, if it wants, can find out details of individuals even without Aadhaar. Sibal replied that in the case of private parties, people had a choice.

Justice Chandrachud countered this, saying that non-mandatory nature of services offered by private sector was only notional. This was the reason why the court in the privacy judgment had referred to the need for a privacy law which will also address privacy concerns pertaining to the private sector, the judge said.

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