- Jan: Day 1 (17/1/18)| Day 2 (18/01/18) | Day 3 (23/01/18) | Day 4 (24/1/18) | Day 5 (30/1/18)
- Feb: Day 6 (1/2/18) | Day 7 (6/2/18) | Day 8 (7/2/18) | Day 9 (8/2/18) | Day 10 (13/2/18)
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.
