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Constitutional Validity of Aadhaar, Day 24 – “There’s no question of privacy involved in this case”

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 15Day 16., Day 17Day 18, Day 19, Day 20, Day 2Day 22 and Day 23.

The Attorney General resumed his arguments from the previous day. He reiterated that we live in a digital era and Aadhaar is the best way to prevent money laundering and deliver subsidies and benefits. He said that a lot of government funds have gone into this project.

The AG said Aadhaar will last for a long time in the future. It has been approved by United Nations and the World Bank. Aadhaar is an ongoing process and the technology and security will be updated as and when required.

The AG said that policy decisions of the government approved by experts are not subject to judicial review. He gave the example of Unified Access Service License. He said that the three organs of the State should have mutual respect for each other in a democracy.

The AG said Development will slow down if there’s judicial review of every administrative action. The Courts should not interfere in matters of technical expertise. The only duty of the court is to expound the language of the act. They cannot decide if a particular policy decision is fair.

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Justice Sikri said that the petitioners are arguing on the basis of proportionaliy. “You say there’s minimal invasion of privacy. Petitioners are challenging that argument.”

The AG said that the State has a legitimate state interest in rolling out Aadhaar. Aadhaar is in line with the Puttaswamy judgement.

Justice Bhushan said that they are not concerned with policy decision. We are looking at the Act and regulations.

The AG reiterated that courts cannot question the wisdom of experts. He said there’s no question of privacy involved in this case. The entire challenge is whether Aadhaar is safe and secure, which they have already proved it is, asserted the AG. (MediaNama: eyeroll)

The AG explained the sixteen digit virtual ID. He said that it is an excellent safety measure. Justice Chandrachud asked whether the onus on the individual to generate a virtual ID. The AG affirmed that it is on the individual.

Justice Chandrachud questioned whether twenty crores people can do it.

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The AG said it’s an additional measure. Justice Chandrachud said that maybe this measure should be applicable to every Aadhaar no without the individual having to generate it. Justice Chandrachud said that perhaps Aadhaar passes the test of legitimate state interest, but proportionality is in question.

The AG said that it stands the test of proportionality because all alternative measures we’re considered before adopting Aadhaar. He repeated that the court should not become an approval authority. It is the duty of the State to look after the welfare of the people in a democracy.

Justice Chandrachud brought up that “Biological attributes” is open ended. The AG said that blood, urine, dna can be added, but it’ll be subject to examination by the courts, just like right now the court is examining whether collection of fingerprints and Iris scans are a violation of privacy.

The AG cited Section 55 and said that the Parliament will be an oversight body. Justice Chandrachud said that the power of UIDAI to decide what is ‘biological attributes” and the method of collecting it has to meet the test of proportionality.

Justice Chandrachud saidThe regulations dont need the approval of the parliament under section 55. The parliament can only disapprove of it. But the initial power to frame regulations lies with UIDAI which might be a case of excessive delegation. The AG said that he’ll answer this point later.

The submitted the Statement by India at the 20th session of UN Commission on Science and Technology for Development on the theme – New innovation approaches to support the implementation of Sustainable Development Goals (SDGs). He mentioned Pradhan Mantri Gramin Digital Saksharta Abhiyan for spreading digital literacy in rural areas.

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The Bench rose for lunch, reassembled at 2:30pm

The AG read an American judgment that deals with the issue of the taking of fingerprints in the context of verifying a prior criminal record. He said that the State may have a vital interest in collection of fingerprints. The fingerprinting ordinance in that case was upheld because it was adjudged to be a minor inconvenience, minimally intrusive, and not a “fundamental decision”, such as the choice of contraception.

Justice Chandrachud points out that the issue is not fingerprinting per se, but narrow tailoring. He recalls that petitioners have taken examples of Identification of Prisoners Act and Bombay Habitual Offenders Act, which are examples of narrow tailoring. Justice Chandrachud said Pervasive use of fingerprints beyond a specific purpose is a problem and breaches proportionality. Limited use like in the case of prisoner identification is not a problem.

Justice Chandrachud said that the petitioners’ objection is not to fingerprinting per se, but to the pervasive nature of Aadhaar. AG said that the purpose is prevention of fraud by having a universal ID. Therefore it satisfied a vital state interest.

The AG said that the purposes are specific – preventing subsidy loss, preventing income tax fraud, and preventing terrorism are all legitimate state interests. Therefore Section 7, and other PMLA notifications are valid.

Justice Chandrachud asks if Section 7 is sustained, the question still remains whether Aadhaar can be expanded to include use by private parties. The AG said he will address it later.

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The AG then read out a case from New York, also dealing with fingerprinting, and said that fingerprinting does not carry any stigma or presumption of criminality. This case said that fingerprints can be used for non-criminal proposes, as a valuable and reliable means of identification. There is no stigma and no unwarranted invasion of liberty. He said that fingerprinting is no more considered a stigma and used for various purposes. Gives example of fingerprints of US government employees being collected.

The AG said fingerprints are used for non criminal uses as well, and that it is not an unwarranted invasion of personal liberty. He repeated the point that the inconvenience is minor, and the violation of dignity is non-existent. The case also said that even if there are alternative means, that choice is to be made by the legislature, and not by the courts.

The AG then read an American Appeals court judgment to make the point that fingerprinting is not an invasive technique and that it is similar to taking signatures and if the means adopted are reasonable, the legislative choice cannot be called into question.

The AG denied that fingerprints can be used for surveillance. He said that they provide a simple means for identification. He emphasized that no government in the last seventy years has conducted surveillance apart from the Emergency and there is no record of the same. That argument has no force.

The AG said that the Court can’t go into legislative motive, or go behind the stated objective of the Act. He continued to read the judgment where the taking of fingerprints was justified under the Sovereign’s police powers.

The AG then read a US SC judgment – Whalen v Roe. This was a case involving retention and storage of data about pharmaceutical drugs. He read Justice Stevens opinion in Whalen v. Roe wherein SCOTUS said that the State need not show that state action was necessary to solve a particular problem and there’s no reason for assuming that state security provisions would be improperly administered. The US SC held that there was no constitutional violation, and the possibility of misuse was not a ground to invalidate the patient identification mechanism.

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The Court in Whalen did not decide what would happen if there was an unauthorised disclosure. The AG said that this shows that the mere possibility that a large quantity of data may be misused is no ground. Justice Sikri said that the position in European law is diametrically opposite.

The AG said that American SC is 250 years old and has often been followed by the Indian courts. Some lighthearted discussion between Justice Sikri and AG on whether foreign judgments should be looked at all.

The AG continued to read paragraphs from Whalen v Roe, that talk about balancing interests. He read about social security numbers, which said that collection of personal data like sexual orientation etc can cause stigma, but the kind of data collected by the SSN does not, and serves a legitimate government interest.

The AG then read a US judgment that upheld the requirement of disclosure of SSN under a certain law. Justice Chandrachud has pointed out the distinction between the American Social Security number and Aadhaar. He said that SSN is more like a PAN card. SSN does not involve biometrics. Senior Advocate Shyam Divan added that there’s no authentication requirement. Justice Chandrachud agreed.

The AG was of the view that the American SSN collects vastly more information than Aadhaar. Justice Chandrachud said that his recollection from his student days is that the SSN only has your name and a number. The AG conferred with his junior and said that this is true, but in any case, the Aadhaar Act said that personal data cannot be disclosed.

The AG next read out a New York Supreme Court judgment on a fingerprint identification program (Buchanan v Wing) and another US judgment on retinal imaging requirement to repel the “Mark of the Beast” argument that Senior Advocate Sanjay Hegde had advanced. He read an American judgment called People v Stuller, which involved fingerprinting in a rape case.

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The CJI said that this case is not relevant because nobody said that you can’t take fingerprints in a criminal investigation. Justice Sikri told him its a totally different situation here as we are not only dealing with convicted persons but all persons.

The AG agreed and moved to his next case. He discussed the case of Brown v Brannon, which was about the ‘massage of private parts for hire.’

The AG read out an American SC judgment upholding SSN usage to prevent fraud that said the government can impose non-discriminatory conditions for the receipt of benefits. He read out the part of the judgment that said that a wide latitude should be given to the State when implementing welfare programs.

The Court rose for the day. The Advocate General will continue submissions on behalf of the government at 11:30am on the 5th April 2018.

Summary of hearing based on tweets by Prasanna S, Gautam Bhatia and SFLC.

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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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