The petitioners are certain that if the Aadhaar Act and programme is allowed to operate unimpeded it will hollow out the Constitution, particularly the great rights and liberties it assures to citizens. "A person can not travel or go to school or open a bank account or have an insurance policy or invest in mutual fund if he or she does not have Aadhaar", he said.
Divan asked the bench to bear in mind three aspects - integrity of the process followed for collection of personal and biometric data, integrity of information being collected, and the pervasive invasion of the fundamental rights in view of the top court's privacy judgement.
Submitting further, he said several state governments have started using the Aadhaar platform to build profiles of residents which is reminiscent of totalitarian regimes.
Justice Chandrachud asked: "Can't the state implement the Aadhaar programme.in public interest?" "Does the Constitution of India allow a program where every transaction is recorded?" he asked in the Supreme Court. Where every basic facility is linked to Aadhaar and one can not live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual. Calling the system of verification-read fingerprints, iris scan and photograph-required by UIDAI "probabilistic", that is, authentication may or may not happen, the senior counsel said it lead to excluding people from services and questioned "How can my constitutional or statutory rights be probabilistic?"
Divan argued that Aadhaar "alters the relationship between the citizen and the state", while diminishing the status of the citizen. Referring to news reports and sting operation of a news channel, he alleged private operators continued to hold demographic and biometric data which could be easily purchased and misused, violating the people's fundamental rights.
Turning to the post-Aadhaar Act scenario, Divan said that while the form says Aadhaar enrollment is voluntary, if you need it for a bank account, PAN card, then the voluntariness becomes academic.
Divan said that the Aadhaar Act was brought as a money Bill and pointed to "irregularity of the procedure in passing the law". At this point, Justice D.Y. Chandrachud, one of the five judges on the Bench, interjected and asked Divan, "Is your contention going to be that all data prior to 2014 has no legal standing at all?"