On Days 17 and 18 of the Aadhaar hearing, the counsels appearing for the petitioners continued with their submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. The Bench has asked the petitioners to conclude their arguments on the next date of hearing.
Below are the highlights from Days 17 and 18 of the Aadhaar Hearing:
Submissions of Senior Advocate KV Viswanathan:
- State doesn’t have the power to compel citizens to do particular acts except in certain defined circumstances.
- Subjecting vast majority of people to a probabilistic method of authentication is of grave concern.
- The presumption of criminality inherent in the collection of identity information is disproportionate and arbitrary.
- In case of Aadhaar, biometric data of individuals is collected by enrollment agencies who are private entities. There is no judicial or independent oversight.
- Aadhaar Act, 2016 is violative of privacy. Centralised storage of data in CIDR is disproportionate.
- Absence of a right to access one’s own biometric data is violative of Art. 19 & 21 and represents state’s failure to fulfill its obligation of providing unimpeded access to the individuals’ own data.
- The Act legitimises mass surveillance by State which is antithetical to the principles of democracy. It doesn’t define ‘national security’ and doesn’t require any ex-ante or ex-post independent oversight.
- Section 7 is unconstitutional and violates Art. 14 of the Constitution as it has resulted in the exclusion of most marginalized sections of society. Gives the examples of rates of authentication failures in Rajasthan(37%) and Jharkhand (49%), citing Economic Survey of India.
- The validity of the Act is to be judged not by its object but by its direct effect on the fundamental rights of the individuals.
- Right to food is a fundamental right and mandatory authentication violates that right.
- Govt. has failed to discharge its burden of proof to justify such infringement under Art. 21. It has also failed to show how Aadhaar has resulted in stopping the losses and caused significant savings.
- Aadhaar based authentication, at best, helps only in identity fraud and none others.
Submissions of Senior Advocate Anand Grover:
- Under the Aadhaar Act, unauthorised and excessive data is being collected. CIDR is protected but data is distributed at all sorts of locations which are not protected.
- Govt. had claimed that all the data in SRDH had been destroyed. That cannot be done just be deleting it from one place. It is a complex process.
- Authentications done in case of a tuberculosis control programme can disclose health info of a group of individuals within that region.
- One necessarily cannot have a unique identity. A thumbprint can match with one person in a million. By using a thumb print and the iris both, one can narrow down but still, it will not be unique.
- It was assumed that the iris cannot be changed. However, a study shows that within three years, quality of iris changes.
- Contracts of UIDAI with foreign agencies for multi-modal biometric systems rendering it ‘insecure ab initio’. The Act specifies that no one else is supposed to have all these information. However, these agencies had access to all the data. There’s a complete failure to ensure the safety of data which is required under the law.
- Because of the inherent personal nature of data, State has to ensure its protection. If it can’t ensure it, it cannot take such data.
- Fingerprints can be duplicated very easily.
- UIDAI has not stopped accepting authentication requests from unregistered devices.
- All security measures are ad hoc. As when problem arises, measures are devised to cover it.
Submissions of Senior Advocate Meenakshi Arora:
- Privacy judgment recognises that wherever there is data collection, it can result in surveillance.
- In the cloak of mass surveillance, the democracy can be destroyed rather than being protected. This will result in the chilling effect due to 360° view on the individuals at all times.