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Constitutional Validity of Aadhaar, Day 17: ‘Collection of biometric information is the complete anathema to proportionality’

This is a record of the proceedings in the Supreme Court bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the previous days’ proceedings here: Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9, Day 10, Day 11, Day 12, Day 13Day 14Day 15 and Day 16.

Senior Advocate KV Viswanathan resumed arguments for Petitioners with his attack on Section 59 – the illegality of the purported validation provision. He read Delhi Cloth Mills case where it clearly held how a law can deem facts but cannot deem legal consequences.

He presented the Indra Sawhney case (2000) being read where legislative declaration of legislative facts are amenable to judicial examination.

In this case for example, Mr. Vishwanathan asserted, informed consent is a key compliance issue. Section 59 cannot declare compliance when it did not exist! Justice Chandrachud asked about the consequence of Section 59 being unlawful. Mr. Vishwanathan responds that all data collected between 2009 and 2016 ought to be destroyed, forthwith.

Mr. Vishwanathan then moved to his next issue of the issue of defacto mandatoriness. He said the barter in the effective mandatoriness of Aadhaar is an unconstitutional condition. He referred to St. Xaviers and Olga Tellis cases.

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Mr. Vishwanathan distinguished between compulsion by State and non-State actors.

Mr. Vishwanathan then argued about choice and bodily privacy and referenced a few European and South African cases. Justice Chandrachud commented on the interesting bit of information on Justice Sachs.

Mr. Vishwanathan read an article ‘ The relational nature of privacy‘ and identifies the types of harms caused by the State in case of search and seizure. He stressed that the State doesn’t have the power to compel citizens to do particular acts except in certain defined circumstances.

He addressed the State insisting what is the problem for people sharing data with govt when they have no trouble sharing it with Google or Facebook. Mr. Vishwanathan exposited that with wide powers, the degree of scrutiny is high when it comes to State. Justice Sikri agreed.

Mr. Vishwanathan detailed the limits of compulsion by law on individual freedoms. He said compulsion by State, in this case, is neither proportionate or reasonable. He said that on the aspect of Section 7, subjecting vast majority of people to a probabilistic method of authentication is of grave concern.

Mr. Vishwanathan cited the recent living will judgment. He referenced Chief Justice of India and Justice Khanwilkar judgments that held that subjecting people to experiments as guinea pigs is a violation of dignity and said that it was no different in this case when masses are subjected as guinea pigs to a probabilistic biometric experiment.

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Mr. Vishwanathan submitted that the presumption of criminality inherent in the collection of identity information that is the premise of the Aadhaar system is disproportionate and arbitrary and is the complete anathema to proportionality. He cited MK v France 2013 ECHR for that exact proposition where storage of the data of entire population was struck down as disproportionate.

Mr. Vishwanathan hypothetically explained using the example of sexual assaults going undetected. He asked if it were made compulsory for all males to submit their DNA samples so as to identify perpetrators of any given sexual assault or offence against a database, such a legislation cannot pass muster under our Constitution.

He said that in case of Aadhaar, biometric data of individuals is collected by enrollment agencies who are private entities. said that there is no judicial or independent oversight. Mr. Vishwanathan said that on point of storage, that Aadhaar Act is violative of privacy. He said that centralised storage of data in the CIDR and control of access to personal data is disproportionate and violates article 14 and 21. Unduly long retention of the data is disproportionate. So is longterm storage of transaction data. So is the preclusion of the Aadhaar number holders from being able to access or correct data. He showed each aspect of collection and storage to be a violation, therefore, of Articles 14 and 21 of the Constitution of India.

Mr. Vishwanathan further said that absence of a right to access one’s own biometric data is violative of Article 19 of the Constitution.

Mr. Vishwanathan said that the Act lacks purpose limitation. said it is an ‘open-ended general purpose vehicle. He read the case of S and. Marper.

He referred to Section 33(2) and failure to comply with PUCL telephone tapping guidelines. He said Section 57 has been dealt with extensively and said he does not want to elaborate on it.

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How Section 7 is unconstitutional.

Mr. Vishwanathan said that the Act legitimises mass surveillance by the State which is antithetical to the principles of democracy. He further said that it doesn’t define ‘national security’ and doesn’t require any ex-ante or ex-post independent oversight. He referred to Economic Survey data on authentication failures and asked Court to direct govt to tell them the latest authentication failure data. Mr. Vishwanathan said even if one person is denied, the Section has to go.

Mr. Vishwanathan said that section 7 is unconstitutional and violates article 14 of the Constitution. He said that it has resulted in the exclusion of most marginalized sections of society. He gave the examples of rates of authentication failures in Rajasthan(37%) and Jharkhand (49%), citing Economic Survey of India and said the design and concept of Aadhaar programme and not merely its implementation, is inherently exclusionary and therefore arbitrary.

Mr. Vishwanathan said that 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. He said that mandatory authentication at point of use violates Article 21 of the Constitution, while right to food is a fundamental right. Mandatory authentication violates their right to choose how to identify themselves.

Mr. Vishwanathan submitted that the government has failed to discharge its burden of proof to justify such infringement under Article 21. It has also failed to show how Aadhaar has resulted in stopping the losses and caused significant savings. Mr. Vishwanathan said that wherever Aadhaar is not given or linked, it is taken as savings or plugging of leakages.

Mr. Vishwanathan said there are four incorrect assumptions in the claims of savings. He said that they have assumed that leakages are caused only due to identity fraud.

Court rose for the day. Hearing to continue on Thursday, 15th March 2018. Chief Justice of India wants petitioners to finish their arguments by afternoon Tuesday, 20th March.

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Summary of hearing based on tweets by Prasanna S and SFLC

Written By

Vidyut is a commentator on socio-political issues with a keen interest in behavioral sciences, digital rights and security and manages to engage her various proficiencies to bring an unusual perspective to issues related with the intersection of tech and people.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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