Brushing aside the Centre's contention that a challenge to Aadhaar was "elitist", Divan said the question is "whether the Constitution of India allows the State to embrace this new programme or whether the Constitution repudiates this giant electronic mesh".
Twenty-seven petitions challenging the 12-digit identity number based on biometric information made mandatory for availing various services have been filed in the Supreme Court.
The petitioners opposing Aadhaar said the National Democratic Alliance's government's ambitious biometric-driven project "sought to tether every resident of India to an electronic leash". He argued that "This leash is connected to a central database that is created to track transactions across the life of the citizen. A result is a huge number of authentication failures", he argued. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. "Over time, the profiling enables the State to stifle dissent and influence political decision making", he argued. During the first hearing session, which began yesterday, the top court was told linking Aadhaar card to banks, mobile and government schemes could cause the death of citizens' civil rights. "Take for instance the collection of information under the Census Act, 1948 where demographic data is collected by the state", Divan said. At the fag-end of the hearing, he said if Aadhaar Act is upheld, then in the alternative, no citizen should be deprived of any right or benefit for lack of an Aadhaar card.
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In response, advocate Shyam Divan, who represents the petitioners, said the problem was that there was no contract with the entity with which citizens were asked to share data.
Chief Justice Misra echoed Justice Chandrachud, saying, "Article 21 confers fundamental rights that include the right to education".
In an illustration of how Aadhaar has become an instrument of exclusion, Mr. Divan related how a couple could not register their marriage under the Special Marriage Act as the authorities insisted on Aadhaar.
CJI Misra on Wednesday met Supreme Court Bar Association (SCBA) president Vikas Singh and discussed various issues relating to administration of justice in the apex court amid the ongoing crisis in the higher judiciary over allocation of work. "They (government) may say that it (collection of biometrics) is being done for the goal of ensuring that teachers and students come to school".