Final hearing of Aadhaar in Supreme Court – Day 19


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 19: 20 Mar ’18

Senior Advocate Meenakshi Arora followed by Sajan Poovayya,  P.V Surendranath, CU Singh, Sanjay Hedge, Jayna Kothari counsel for petitioners arguing.

  • Meenakshi Arora is arguing that indiscriminate collection of data is akin to a general warrant, issued without probable cause or suspicion.
    • Reads out judgments from the ECHR (Zabo) and the German Federal Court, which ruled that long periods of data retention violated privacy rights.
    • Reads out UN GA Resolution of 16/11/2016, which warns of the perils of aggregating metadata.
    • Summarises by saying that mass collection of data and aggregation can have a chilling effect on fundamental rights.
    • Says that in the affidavit filed by the Union of India on 9 March, which admits that aggregation of data can lead to surveillance, but insists that this cannot happen in a state with rule of law.
    • Says that our history should warn us to be careful about this claim. She says that the protection we are seeking is not for the here and now, but for generations to come.
    • Says that collection, aggregation and retention of data has no specific purpose, and therefore violates the principles of purpose limitation and proportionality.
    • Says that there can’t be unfettered executive discretion simply by invoking national security.
    • Traces how the government went from encouraging people to get an Aadhaar and allowing alternative forms of identification, to mandating it.
    • Says that the proviso to Section 7 should be read down. When it says “if an Aadhaar number is not assigned”, it should be interpreted to mean that those without an Aadhaar should be allowed to use other identification.
  • Justice Sikri and Chief Justice of India disagree with this interpretation.
  • Meenakshi Arora reads out the SC’s Canara Bank judgment, which says that although the possibility of abuse may be remote, if the framing of the Act enables it, it raises constitutional issues.
    • Says that at least, there must be provisions for periodic deletion of data.
    • Points out that there is no scope for judicial review under the architecture of the Aadhaar Act.
    • Cites Michel Foucault to say that an asymmetry of knowledge leads to an asymmetry of power.
    • Says that the stated purpose of such schemes is always to reform people – but it’s impact is that of suppression.
    • Says that the State is not allowed to make the exercise of fundamental rights subject to a license, which is probabilistic. This deprives individuals of control over their identity, and violates dignity.
    • Says that Aadhaar treats citizens as subjects, and should be struck down.
  • Meenakshi Arora concludes.
  • Sajan Poovayya is next.
    • He points to the German census case.
    • Says that while a legislation may pass the test of proportionality and least intrusion in the brick and mortar world, it may not in the world of technology – and specially information technology.
    • Says that there may be a compelling state interest in Aadhaar – to identify people accurately. But that must be achieved in the least intrusive fashion. Aadhaar does not achieve that.
    • Says takes the example of credit card chips, and says that the least intrusive use of biometrics is to store them on the card itself.
    • Says that when you go to get your ration, the authentication will be from your fingerprint then, to your fingerprint stored on the chip. He says that this is a less intrusive way of achieving the same goal, because you don’t need a central database.
    • Says that this allows people to control their own data, and this is the core of the right to informational self-determination.
    • Says that in fact, this will be more accurate, because you aren’t matching with a database of 1.3 billion people. So there is less chance of exclusion.
    • Says that it’s not just S 57 that makes the Aadhaar Act bad. What makes it bad is that the definition of biometric is open ended, and the government can add to it through regulations.
    • Says that this is not about possibility of misuse, but possibility of use. The definition allows for vastly expanded use, which can subsequently include DNA and even plasma.
    • Reads out the German census case from 1983.
    • The German Court said that proportionality requires clarity about the purpose, use and linking of data.
    • Says that I am a citizen do not know and have no control over what happens to the Aadhaar data.
    • Says that Aadhaar reduces an individual to an object of information.
    • Concludes by drawing the distinction between giving localised, multiple-interfaced biometric information to, e.g., the phone, and the centralised database in Aadhaar.
    • Says that private entities give you much more control over your information, and at best they can use it for commercial purposes, and if there’s a violation, I can sue them.
    • Says that the core problem with Aadhaar is centralisation instead of localisation.
  • Bench rises. Petitioners will be given half an hour to finish after lunch.
  • Second session. Petitioners to conclude.
  • Surendranath argues that if it is shown that the Aadhaar Act is arbitrary and violates Article 14 and due process, it is unconstitutional, and no actual violation need be shown. Cites two articles.
  • Justice Sikri says that we have come to a stage where there is so much information about Aadhaar on both sides. How do we sift through and decide?
  • P.V Surendranath appearing for Kisan Sabha, intervenors, begins his submissions
    • Says that the core point is that you are derived of control in the decision-making process – that is, at the time of authentication.
    • Talks about the incident in Spain where the FBI had to apologize to a person because his fingerprints had been a wrongly matched.
    • He says that countries all over the world are moving away from fingerprint-based identification.
  • CU Singh is next.
    • He says that one crucial issue is that of the rights of children.
    • Reads out the Convention on the Rights of Child, to which India has acceded.
    • The right of the child to privacy is expressly protected in the Convention and in Indian laws.
    • There is a principle of “fresh start” under the JJ Act that requires deletion of records.
    • A child in India, under law, cannot consent or enter into contracts. In this background, to say that a child should be made subject to a mandatory regime of Aadhaar stands on a different footing.
    • Points out that nowadays infants are being footprinted immediately after birth. He says that this is not permissible.
    • Says that the right of the child to education cannot be made subject to Aadhaar.
    • Says that the Puttaswamy judgment specifically recognised the right of the child.
    • Hands over a concluding note that sets out the major issues that the Court most decide in Aadhaar.
    • Lastly, points out that Aadhaar has been made compulsory for EPFs. This has been done without statutory backing, and is therefore illegal.
    • The last point is about the right of the homeless, who because of a lack of a fixed abode, are suffering specific problems that must be addressed.
  • CU Singh concludes. His WP.
  • Sanjay Hedge is the next counsel. He says that he is representing a conscientious objector.
    • Hegde says that there are religious objectors whose freedom of conscience must be respected.
    • His WP.
  • There is one last intervention application. This is on the right of transgender persons. It is argued by Jayna Kothari.
    • Jayna Kothari says with respect to transgenders, demographic information becomes a major issue.
    • Aadhaar Regulation 4 of 2016 require demographic information. The form has third gender, but there is no uniformity across the board, and you have to produce other documents to get an Aadhaar, some of which may not have had that option.
    • Non-recognition leads to denial of benefits.
    • Points to a decision of the Supreme Court of the Philippines that struck down a national ID system.
  • Petitioners conclude. Bench rises.
  • The State will commence arguments tomorrow.
2018-04-11T10:32:17+00:00March 20th, 2018|Aadhaar|0 Comments

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