January 30, 2018
Hearing on petitions related to Aadhaar and its linkages to several services resumed before the Supreme Court bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan on Tuesday (January 30).
Senior counsel Shyam Divan continued his submissions and arguments. The day’s basic argument was bolstered by the example Divan presented of the House of Lords of the UK and how personal data was found to be infringing privacy as found by the European court.
He started by noting a judgment of the European Court of Human Rights which was against the Russian Federation. It said that the interception of the mobile, data communication in Russia had a direct impact on the applicant’s privacy.
Here are the submissions:
11.40am: He said: “It is not disputed that the usage of mobile data communication is a part of private life of an individual as embodied in Article 8 of the EU convention of human rights. The usage of mobile telephone communications in Russia is subject to secret surveillance and is a clear infringement of an individual’s right to privacy.
“The surveillance system does not provide with a complete guarantee of protection of data in a democratic society, as existing in Russia and submitted by the Russian government in the (above mentioned) case.”
12:06 pm: He said: “The European court of human rights case mentioned on April 8, 2014 that the retention of data was questioned. The commission’s directive was to represent an impact assessment on the retention of data on the communication of data, on basis of Article 95 of EC.”
Divan also highlighted “internet protocol”, because the entire retention of data brings out an individual’s private life in the public domain, the day-to-day activities of an individual. He said: “Data related to individual’s private life infringes the rights subjected under article 5 and 6 of the directive. It is necessary to proportionate the interference with the individual’s privacy and national security.”
12:06 pm: The S and Marper vs UK case was referred to, where the European Court of Human Rights reversed the judgment of the House of Lords. The case originated in two applications via Mrs and Mr Marper, complaint under Article 8 that the officials continued to retain their DNA and fingerprint samples, even though after they were acquitted. The police refused to destroy the samples.”
The court said that DNA and fingerprint samples exhibit only a limited amount of private data. However, in the later time, science would develop so much that it might represent a lot more than the limited information.
The House of Lords’ assessment was that DNA profiles, fingerprint and cellular samples do constitute personal data.
12:15 pm: Similarly, Divan specifically focused on fingerprints. In a similar manner as voice storage or photographs constitute important information, the fingerprints do the same. “Initially fingerprints were taken for criminal proceedings,” Divan said. However the court stated that it’s important to distinguish as to why the data samples are being taken with a justified reasoning.
The argument is that interference would be considered legitimate and justified if the reason is properly given by the state officials and there is a balance maintained between national security and an individual’s rights protected under article 8.
Divan insisted that domestic laws must provide adequate data protection, especially for the sensitive data of an individual. The blanket nature of indiscriminate nature of retention of data does include violation of right to privacy, concluded the House of Lords in the case, Divan said.
Divan pointed out that the House of Lords unanimously agreed that there was a clear violation of article 8 of the convention.
12:32pm: Divan said that the act is capable of secret surveillance, not that it is already infringing the data. “They denied 360° view of the customers and denied secret surveillance. There is a blanket denial on secret surveillance and on 360°. In 2012, the UIDAI focused on state resident data hubs, long before the act came into existence. The UIDAI is envisaged in the same in order to manage the state resident datas in their respective states/UTs and Aadhaar enrolment would be the initial/starting step for the SRDHs.
All the data will be aggregated with no statutory protection, said Divan. Connect the other data with the main data once the SRDHs is formulated/established, he said.
12:44pm: The bench intervened and said there were schemes run by Central and state governments which collect other forms of data to form a 360 degree view of a person when collated. He mentioned MGNREGA, land records, PDS, pension and then others, as well as State Social Security Mission of Madhya Pradesh, the Odisha SRDHs. The bench also said all this clearly support the 360° profiling issue. “They seem to be establishing the 360° profiling system for a centralised usage of data and for the social security measures and schemes taken up by the government,” said Justice Chandrachud.
“The political ideology of what an Individual does in their private life is a very serious issue. But if the government is trying to protect its subjects with the help of such data in proper execution of social security measures, doesn’t the government have a legitimate concern?” the judge asked.
Counsels, however, pointed out that surveillance was not warranted for a free citizen.
Matter resumes on February 1.
—India Legal Bureau
