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Constitutional Validity of Aadhaar, Day 31: No reasonable expectation of privacy against collection of demographic data

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, Day 23, Day 24, Day 25, Day 26, Day 27, Day 28, Day 29 and Day 30.

Senior Advocate Rakesh Dwivedi continued his submissions on the behalf of UIDAI and the State of Gujarat. He read from Page 56 of his written submissions quoting Amartya Sen, “Development requires the removal of major sources of un-freedom, poverty as well as tyranny”

The CJI said that liberating people from un-freedom (poverty) is at one end of the spectrum and right to privacy is on the other.

Justice Chandrachud commented Aadhaar is a means for identification according to them. The only caveat to that is that there should be no exclusion.

Dwivedi reiterated that the point of Aadhaar is to bring the provider of benefit face to face with the beneficiary.

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Justice Chandrachud said that he was not sure if that’s the best model. The individual should not be a supplicant. The State should go to him and give him benefits.

Discussion continued on Section 7. The CJI and Justice Chandrachud had suggestions on how to argue this point to Dwivedi. Justice Chandrachud said that the Parliament in its wisdom has decided there is leakage and that to implement Part IV rights, we will need to defer to that. Dwivedi agreed and repeated the point of for the first time people having to come to face to face. Justice Chandrachud did not agree to that proposition. He said that the State has the duty to ensure Part IV rights irrespective.

More discussion followed between CJI and Dwivedi on how many villages have fair price shops.

Dwivedi read from Page 53 of his submissions on how certain countries have economic social rights and right to welfare in their respective Bills of Rights. He then read the Statement of Objects and Reasons of the Protection of Human Rights Act, 1993. He said that India has been a signatory to several international covenants.

He then read from the Subramanian Swamy judgment of Justice Dipak Misra. Page 318 as reported in SCC. He said that various judgements of the Supreme Court on economic and social welfare culminated into the Parliament framing the Aadhaar act. Next he quoted Subramanian Swamy judgment on balancing of fundamental rights wherein Article19(1)(a) was balanced against the right to reputation. In Swamy’s case which challenged criminal defamation provision, it was right of freedom of speech v right to reputation.

Then, he read from the judgment of Asha Ranjan vs State of Bihar (Paras 57 through 62). “Larger public interest” and “interest of the collective” is the guiding factor when there is a conflict of fundamental rights, especially when it is within the same article right. For example Article 21 v s Article 21. (Cases cited by Dwivedi include X v. Hospital Z, G. Sundarrajan v. Union of India, Ashan Ranjan v. State of Bihar, Noise pollution in re v. Union of India.)

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Justice Chandrachud added that in saying the conflict can arise not between two individuals, but even for the same individual, conflict between two rights.

Justice Chandrachud said the Supreme Court had never accepted the suppression of civil liberties on that ground. Dwivedi said Aadhaar is not suppression of civil liberties. The CJI advised Dwivedi to structure his submissions to articulate it as Article 21 and minimal intrusion. Minimality of intrusion will take care of balancing and Article 21 for many will be the legitimate state interest.

Dwivedi said that he would address balancing next. He spoke of how balance is the symbol for justice. No two extremes. Nothing should cease to exist. Both should coexist. He said What is being done under section 7 of the Aadhaar Act covers human rights of a lot of people of our country. He said that the Court should act as a sentinel to ensure that right to privacy is balanced with all the other rights under Article 21 that Aadhaar covers.

Dwivedi cited a 2017 case, Indu Devi v. State of Bihar, where a lady wanted an abortion but the court ruled that she cannot since having an abortion was a risk to her life. Here her right to choose was balanced against her right to life, he opines. “Balancing wheel” emanates from the Buddha, he said.

Dwivedi cited how Govt can go ahead and ban prostitution or manual scavenging even if people who are engaged in such work are doing it by choice for his argument on balancing. Choice v his/her dignity.

Justice Chandrachud recommends the book “Ant among elephants” by Sujatha Gidla to Rakesh Dwivedi.

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Dwivedi said Privacy is a small price to pay for ensuring life itself and also the rights under Article 21 of the Constitution.

Justice Sikri asked if Dwivedi’s section 7 arguments are over.

Dwivedi said yes and moves to his next argument on “Reasonable Expectation of Privacy”. He said Aadhaar Act draws distinction between demographic info, optional demographic info (mobile no.), core biometric information, and biometric information like photograph. Idea of reasonable expectation of privacy varies from one set of data to another. He said that all data collected by Aadhaar is basic data. Collected almost everywhere. Bank, bar council, university etc. He said that a reasonable expectation of privacy in case of demographic info and photo will be very low as such information is publicly available.

Justice Chandrachud asked if his argument that there is no reasonable expectation of privacy in demographic data because it is already in public realm. Dwivedi said yes.

Justice Chandrachud pointed out how race caste religion etc are excluded in the Act. Dwivedi agreed happily.

Justice Sikri said it is a question of apprehension of using the data in a manner and for purposes unauthorised and against the individual.

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Dwivedi said fear has to be real not fantastic. The CJI said Dwivedi cannot make the subjective judgment on that.

Dwivedi said that they are concerned only about real and general apprehension or fear of the public with respect to Aadhaar. Fear is subjective. The CJI said that some fears are misconceived.

The Court rose for the day. No hearing in the second half of the day due to a Special Bench on the Sahara/SEBI matter. To resume at 11:30am on the 24th 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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