Final hearing of Aadhaar in Supreme Court – Day 12

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 12: 21 Feb ’18

Senior Advocate Gopal Subramaniam counsel for petitioners arguing.

  • Hearing resumes.
  • Gopal Subramaniam continues with his arguments.
    • Now reading Jija Ghosh judgment on human dignity and wants to link it to Puttaswamy 9 judge bench pointing out the constitutional value of human dignity as detailed in a judgment.  Says that to live is to live with dignity.
    • Refers to the case of Subramanian Swamy which talks about the concept of reputation as a natural right – a facet of dignity.
    • Emphasises the need for proportionality. He says he can understand if it is a question of an offence of impersonation and there is a procedure followed. But a whole population cannot be subjected to a process assuming the entire population are impersonators.
    • This Indian culture respects the inherent divinity of every person (answering a question by Chief Justice of India  following Gopal Subramaniam giving a Sanskrit verse to show justice and dignity are inextricably connected).
    • Points out the connection between fairness and justice which lead to dignity. Asks if the present Act is fair and just.
    • Says that lack of authentication has led to deprivation which has led to debt. Says that it is an accountable State architecture. The insignia is some kind of probity and rectitude which should be assured.
    • Responding to a question by Justice DY Chandrachud, says that he’s taking a doctrinal position. Says that he agrees that people should have a political identity. However, there are two expressions- ‘identity’ & ‘identification’ and it is the former which has constitutional relevance.
    • Says that minimal, regulatory identification is fine but identification for availing rights is not. Says that the State has a duty to be citizen friendly.
    • Pointing out the problem, says that Aadhaar Act has an element of objectification. It depersonalises an individual. It eliminates any form of transaction except through the medium of this Act.
    • Says that unique identity cannot be given by a number. Identity is as natural as the life itself.
    • State is obliged under Ar. 13 to respect the rights of the individuals.
    • Says that State cannot use this present mechanism to find out the ghost people. State needs to have a better mechanism which make it accountable and follows due procedure.
    • Says that opacity is antagonistic to rationality. The law must be able to rationalize its objectives.
    • Goes to informational privacy now. Reads on from the Puttaswamy judgment on restrictions to the right to privacy which includes legitimate State aim and proportionality.
  • Bench rises for lunch.
  • Bench re-assembles post lunch.
  • Gopal Subramaniam continues.
    • Reads excerpts from Puttaswamy judgment about informational privacy.
    • Says that the statute itself gives evidence that there is an aggregation of data including the metadata.
  • Justice DY Chandrachud asks to read para 309 of the judgment which talks about monitoring web for national security.
  • Gopal Subramaniam says that it is different. It talks about monitoring of web not aggregation. Asks to consider that in case of aggregation of data, if somebody hacks into the database, what will become of the individuals.
    • Goes to the Act, testing it on Ar. 14, 19 & 21.
    • Reads section 59, submits that the expression ‘by law’ means law in present time and not retrospection.
  • Justice DY Chandrachud. points out the problems with giving retrospective validity to the actions.
  • Gopal Subramaniam agrees.
    • Says that if there’s an invasion of fundamental rights, what is without the authority of law cannot be deemed to have been done under the authority of law.
    • Now refers to proviso to Article 73(1) of the Constitution. Enlists the entries in the concurrent list concerning Aadhaar. Says that interface of accountability takes place at the lowest level, state and then union level. Says Aadhaar violates the federal nature.
    • Says that to examine section 59, two points will have to be considered: absence of law and invasion of rights.
    • Says that a law cannot subsequently cure the invasion of rights.
    • Says that de-facto and de-jure invasion has taken place here. It is complete. And in such a case, a law cannot retrospectively cure such actions. Very interesting exchange between the Bench and GS on point of law w.r.t. Section 59.
  • Justice Chandrachud asks in context of section 57 that whether, prior to 2016, State govt. also utilised Aadhaar.
  • Gopal Subramaniam tells that State govts. entered into MoUs to establish State Resident Data Hubs.
    • Asks why should the beneficiaries of the schemes beg the State to get their entitlements.
    • Says that heart and soul of this Act is authentication. If authentication fails, consequence is disablement. In such a case, there’s no form of substantive or procedural redressal.
    • Says that this Act doesn’t even provide for retrieval of core biometric information. To compensate it gives provision of update. But how will an individual come to know that his biometrics need updation.
  • Bench rises for the day.
2018-04-11T10:40:24+00:00February 21st, 2018|Aadhaar|0 Comments

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