The counsels appearing for various petitioners in the final hearing on the Aadhaar matter that has been going on since 17.01.2018, finally concluded their arguments on the 19th Day of the hearing and made way for the Attorney General KK Venugopal to begin his submissions on the 20th Day of the hearing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.
Below are the highlights from Day 19 of the Aadhaar Hearing:
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.
- Surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression.
- Collection, aggregation and retention of personal data under Aadhaar has has no defined purpose and thus doesn’t meet the test of proportionality and strict necessity.
- Lack of foreseeability and apprehension of abuse justifies intervention by the court in present case.
- Aadhaar act contains no provisions for data protection, apart from a mere obligation on the Authority to ensure security of the information which again is vague and doesn’t lay down any data security standard or prescribe measures in case of data leak. In Aadhaar project, there are no judicial safeguards or effect remedies in case of breach.
- Aadhaar infringes the right to dignity of the individual as it amounts to requiring a licence for exercising fundamental rights. Making Aadhaar sole means of identification is neither wise nor fair as primary objective of govt. schemes is to ensure that beneficiaries get the services instead of being excluded.
Submissions of Senior Advocate Sajan Poovayya:
- A legislation may satisfy the tests of restrictions, however, looking from the lens of technology, the same legislation may prove to be intrusive.
- Compelling state interests is ensuring the identity of individuals but it must be achieved using least intrusive methods. Assuming biometric technology is not bad, then least intrusive method is using a card with a chip which stores the biometrics.
- In a democratic society, an individual must have the right to decide how much info he/she wants to submit.
- In case of a chip being used, the chances of biometric failure is also reduced.
- Even if we accept that biometric info is necessary, then what all biometric info must be made mandatory to be provided?
- Aadhaar doesn’t stand on the same footing as Census data where statistical data of all the citizens is taken which also has a lot of protection. Why should Aadhaar data be given less protection then when it contains more sensitive data?
- We don’t have a data protection legislation in India. In case of phones or Google servers which have multiple interfaces, possibility of collation of data is not there since GDPR stops them from doing so.
- In case of Aadhaar, there’s a centralised database unlike the localisation of data as in the case of phones which causes problems.
- Biometric per se is not bad but when used in connection with technology, it becomes bad.
Submissions of Senior Advocate Senior Advocate CU Singh:
- India has acceded to the Convention on Rights of the Child and enacted Juvenile Justice Act and POCSA.
- The legislations ensure the privacy of the child. Under law, a child has no right to give consent or to enter into a contract. Child cannot be deemed to have given consent under Aadhaar that too when it involves parting with data permanently.
- Fundamental right to education cannot be subjected to production of Aadhaar.
Submissions of Senior Advocate Senior Advocate Sanjay Hegde (appearing for a petitioner having objections based on religious theology):
- John Abraham was a student in a Mumbai school but was denied admission to Class 12 for non-production of Aadhaar.
- The individual conscience of the petitioner leads in good faith to the conclusion that he cannot apply for Aadhaar number. Thus, there should be an exception for him. (Sikri, J finds the argument interesting. Says the Bench will consider it)
Submissions of Counsel Jayna Kothari (appearing for an organization that represents the rights of transgenders and sexual minorities):
- Much has been discussed about Biometrics but not demographic data collected under the Aadhaar Act. Transgenders cannot get Aadhaar because they don’t have gender identity documents required by Aadhaar. Caste, religion is left out but not gender. It’s a violation of privacy and equality.
To read the highlights from the submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.