Vidyut
By Vidyut ( @Vidyut vidyut@medianama.com ) April 6, 2018
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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 1, Day 2, Day 3, Day 4, Day 5, Day 6, Day 7, Day 8, Day 9, Day 10, Day 11, Day 12, Day 13, Day 14, Day 15, Day 16., Day 17, Day 18, Day 19, Day 20, Day 2, Day 22, Day 23 and Day 24.
The Attorney General continued his arguments, reading from his submissions about the US Court of Appeals case (page 261) on DNA storage of arrested persons (MediaNama: All further reading is from this document unless linked separately).
The CJI cautioned AG that this does not apply in this case as it is narrowly deals with offenders. The AG said he wanted to read the portion relating to retention of DNA. Teh CJI allowed him to continue reading. “…Court shall not base its reasoning on Hollywood fantasies…”
Justice Chandrachud said that this does not arise in our case. He reiterated that the problem with Aadhaar is that the administrative authority can define section 2(g) of the Act. This might not meet the test of proportionality.
The AG said he will meet that point. He paraphrased it as an excessive delegation point.(Prasanna: No no no there are two distinct points. An independent stand-alone excessive delegation point and an independent proportionality-privacy relatable excessive delegation point.)
The AG next read a Fordham Law Journal article on how automated finger imaging does not violate privacy. He emphasized the part in the article that asserts that finger imaging technology is 99.9% accurate. He submitted that biometrics is a very safe and accurate technology and said biometrics can problems such as money laundering, bank frauds, income tax evasion etc.
AG said watching television every day is shocking…crime on the rise every day. Bank frauds totalling lakhs of crores. This will catch them all. Justice Sikri laughingly said Bank frauds have got nothing to do with this – bank frauds weren’t caused because of multiple identities. The AG responded by citing benamis multiple identity based frauds.
Justice Chandrachud also joined Justice Sikri and said nothing in Aadhaar prevents an individual operating a layer of commercial entities to do a chain of transactions. He said he didn’t see how Aadhaar is going to help with detecting or preventing bank frauds. It can only help in providing benefits under section 7 at most.
Justice Chandrachud said that mere legitimate state interest does not ensure proportionality. He said that the AG’s submission lacks this nuance.
The AG said that Aadhaar will help in income disparity and eliminating poverty. Justice Sikri said that the gap is widening – inequality is increasing. More than 70% wealth is in the hands of 1%. No question of India having bridged inequalities. Some debate ensued on Trickle down economics (AG referred to Gurucharan Das) and Justice Sikri referring to Prof Amartya Sen.
Justice Chandrachud said that the legitimacy of the interests involved here is a given, but the crux lies in proportionality. Proportionality is key. How far can the state cast a net of Aadhaar? Only section 7 seems to be understandable.
Justice Sikri said that the State cannot assume that the entire population consists of defaulters and violaters. What is the logic in linking all sim cards to aadhaar.
The AG said that terrorism will be curbed by doing this.
Justice Sikri took the example of mobile-Aadhaar linking. He asked where the proportionality in suspecting everyone to be a terrorist is. The AG responded with the example of Kashmir and said they shutdown internet to ensure stone throwers don’t communicate with each other and assemble. (MediaNama: Even arguing that such censorship were to be justified, how would shutting down the internet in an entire area be improved by knowing the Aadhaars of those whose internet was shut?)
Justice Chandrachud asked whether terrorists apply for a cell phone? They may use, but do they apply? He said that it’s a problem that the State is asking the entire population to link their mobile phones with Aadhaar.
The AG said that we are asking for minimal information via Aadhaar. He said that most information is already available in public domain. He said that the question is to what extent has Aadhaar invaded privacy? He claimed it’s as minimum as possible.
The Bench rose for lunch and reassembled at 2.30 pm.
The AG resumed his submissions. He said Aadhaar is required only for section 7 benefits, banks, income tax and mobile nos. Apart from that it’s purely voluntary. Emphasized that linking Aadhaar with mobile number will help in curbing terrorism. He said that the Court needs to balance two competing rights and maintained that right to food, right to employment, right to medical care, etc trump right to privacy. Can right to privacy be invoked to deprive other sections of the society, he asked.
The AG repeated that the invasion to privacy is so minimal that it can’t even be considered an invasion. He cited X v. Hospital Z wherein right to privacy was balanced against right to information. The appellant ( a man) had HIV and had the right to non disclosure. However, the court had held that his fiance had the right to know of his disease.
Justice Sikri said that this is the case of balancing the rights of two person. In the case of Aadhaar, the State is giving a person food in exchange of their privacy.
The AG said that the bare minimal requirements for identification for an individual is alone taken and to the extent that the technology permitted. Should people have basic right to life under article 21? Can it ever be challenged on the ground that we have a right to privacy, he asked.
Justice Bhushan remarked that minimal invasion is subjective. The AG asked the bench to look at the information taken and look at it from objective standards. “We have to look at the larger interest of the country.”
Justice Chandrachud said they have to look at three things: informed consent, purpose limitation, and enough security.
The AG said that the CIDR is completely safe.
Justice Chandrachud said that they have to look at what proportionality means. Proportionality hasn’t been defined in the Puttaswamy judgement.
The AG said that without the minimal information that is collected, the entire architecture of Aadhaar couldn’t have been framed. He said sections 29 a and b contain purpose limitation. He cited a few cases on balancing of fundamental rights.
The AG repeated that Aadhaar was voluntary when it was rolled out, therefore there’s no question of violation of any right. He said informed consent was implied. (MediaNama: Actually, Dr. Pandey had said in an interview then that consent was not required.)
Justice Sikri asked if it is permissible to say that I’ll give you food, shelter, etc but you’ll be my slave.
The AG replied that slavery is not permissible.
Justice Chandrachud said that his argument to save the validity of the Act does not take into account what happened before the Act was passed. There was no protection for the citizens that time. He said that there’s no retrospective effect also and asked about collection of data by state governments.
The AG said that state governments act as the agent of the central government.
Senior Counsel Rakesh Dwivedi said that proof of concept study was conducted in rural areas before Aadhaar was decided upon. He said IT act after 2009 empowered the use of Aadhaar for the purpose of e-commerce.
Justice Khanwilkar asked whether biometrics locking option is available for people who don’t want to use Aadhaar.
Mr. Divan interjected and said that there’s no way to opt out of the Aadhaar system.
The Court rose for the day. The Advocate General will continue submissions on behalf of the government at 11:30am on the 10th April 2018.
Summary of hearing based on tweets by Prasanna S, Gautam Bhatia and SFLC.
