Final hearing of Aadhaar in Supreme Court – Day 11

This post is essentially a compilation of tweets from Gautam Bhatia, Prasanna and SFLC to understand how the Aadhaar hearing happened in the Supreme court.

Day 11: 20 Feb ’18

Senior Advocate Gopal Subramaniam counsel for petitioners arguing.

  • Hearing resumes.
  • Gopal Subramaniam continues on petitioner’s behalf.
    • Refers to the Puttaswamy judgment. Says that the law which impairs dignity is per se unconstitutional.
    • Says that as per privacy judgment, between concerns of state and rights of individuals, it is the rights of individuals which will have prominence.
    • Says that Aadhaar must satisfy the test of substantive and procedural reasonableness. Further says that there cannot be a waiver of Fundamental Right.
    • Says that the legitimacy means that the aim is discernible and the means to achieve that aim is equally discernible.
    • Says that the Act suffers from excessive delegation and hence is violative of Article 14.
    • Says that there cannot be retrospective validation of actions which violate fundamental rights.
    • Points out 2 observations:
    • 1. Existential identity cannot be judgmentalised by the State. The negation of such identity, even if by an algorithm, may have far reaching consequences.  Refers to the Aadhaar PAN case- Binoy Viswam. Says that State has taken 3 positions:
      • 1. Social good.
      • 2. The services to be provided- which can also be of private players.
      • 3. Admission by the State that there are serious flaws in collection, retention, etc. of information.
    • Says that in the absence of a data protection law, Aadhaar Act cannot survive. DP Law is based on fairness, information sharing principles. But this Act doesn’t satisfy any of the criteria.
    • Says that the entire authentication is based on algorithms. Says that an algorithm’s behaviour cannot be predicted even by the State.
    • Says that pensions, scholarships are important entitlements. Says the facilitation of those entitlements by the State is the important part. Does this Act facilitate those entitlements?
    • Now moves on to the privacy judgment. Says that the golden thread in Ar. 14, 19 & 21 is dignity, liberty and privacy. Says that the law must be compatible with the golden thread.
    • Reads out the relevant paras from the judgment.
    • Says that we cannot have discreet silos of human nature which can be connected.
    • Now refers to the part of the judgment which talks about privacy being a natural and inherent right.
    • Says that existential identity means the identity for survival. Says it can become transactional and even then it is protected as an inalienable right under the Constitution.
    • Says that exclusion tantamounts to discrimination. And the Act which discriminates, does not protect the right to privacy.
    • Says that natural rights are not conferred by the State. They exist by virtue of being a human.
    • Reads on the privacy judgment on inalienable nature of the rights.
    • Reads out parts from the privacy decision referring to Canara Bank case. Asks to consider the consequences of this case.
    • Says that assignment of a number to an individual, identification through a number is completely destructive of dignity.
    • Reads further on from privacy judgment.
    • Says that nobody knows the behaviour of algorithms. They have their own unpredictable nature.
    • Says that right to privacy is an element of human dignity.
    • Refers to judgments of various jurisdictions.
  • Bench rises for the day.
2018-04-11T11:14:09+00:00February 20th, 2018|Aadhaar|0 Comments

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