Day 19 of the final hearing began with Senior Advocate Meenakshi Arora submitting her written submissions to the court. Explaining the chilling effect on fundamental rights that is caused by a general and indiscriminate retention of personal data, she cited the decision in ECHR Szabo case which held data retention for long periods to be violative of right to privacy. She further referred to the EU case of Tele2 wherein metadata relating to communications retained for a period of six months was held to be contrary to the fundamental freedoms guaranteed under EU Charter. She contrasted this decision with Aadhaar which required retention of metadata for a total period of seven years.
Ms. Arora then read out the UN General Assembly resolution of November 2016 on Right to Privacy in Digital Age, talking about the powers and dangers of meta data. She stated that surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression. She further referred to an expert report compiled by the respondents which stated that surveillance using data in CIDR is possible however, cannot take place in a state governed by rule of law. She argued that that one should be wary of such claims and submitted that the protection being sought is for the future generations.
She then moved on to her next argument and stated that collection, aggregation and retention of personal data under Aadhaar Act has no specific purpose, and therefore violates the principles of purpose limitation and proportionality. She again referred to Tele2 case and said that unfettered retention of data in the name of national security cannot be allowed. She then referred to the 2014 report of UN High Commissioner for Human Rights and read “it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate.”
Reading the Canara Bank judgment, she questioned the unbridled and sweeping powers being given to the authority with respect to collection and application of data collected; and the possible misuse of it, even though remote. She submitted that the lack of foreseeability and apprehension of abuse in the present case justified the intervention by the Court.
Ms. Arora then went on to state that the Aadhaar Act did not contain provisions for data protection apart from a mere obligation on the Authority to ensure security of the information which again is vague and doesn't lay down any data security standard or prescribe measures to prevent data breach.
Ms. Arora then argued that the Aadhaar project lacked judicial safeguards and effective remedies in case of a breach. Stating that right to freedom includes the right to be free of unwarranted profiling and surveillance, she again stressed that Aadhaar has a chilling effect on exercise of personal liberty and other fundamental rights. Referring to Jeremy Bentham’s idea of a model security institution called Panopticon for reformation of prison inmates, which involves a one-way surveillance in that there a constant and round-the-clock watch could be kept on the inmates by the guards in the central tower, however the inmates cannot see the guards or know if they are being watched at any specific moment.
Next, she submitted that the Aadhaar project impinged upon the right to dignity of the individuals as it amounted to requiring a license for exercise of fundamental rights. She stated that making Aadhaar a sole means of identification would neither be wise nor fair as the primary objective of the schemes is to ensure that the beneficiaries get the services instead of being excluded.
Ms. Arora concluded her arguments stating that the Aadhaar project including the Act as well as other subordinate legislations should be struck down.
Next, Senior Advocate Sajan Poovayya commenced his arguments and stated that while a legislation may satisfy the tests of proportionality and least intrusion in general, considering it from a technological viewpoint, the same legislation may prove to be intrusive. He further stated that Aadhaar might involve a compelling state interest, i.e., ensuring the identity of individuals, however, it must be achieved using the least intrusive methods. He further said that even if we assume that biometric technology is not bad, the least intrusive method like using a card with a chip which stores the biometrics, should have been used.
He opined that in a democratic society, an individual must have the right to informational self-determination and to decide the amount of information she wants to submit. He further submitted that the definition of ‘biometric information’ is open-ended and the government can add other attributes to it at a later stage through regulations. He asked that if, at a later stage, DNA helix is made mandatory by the government then whether storing it a centralized database would be the least intrusive method.
He then moved on to read the German census case of 1983 wherein it was held that for a method to be proportional, there should be clarity about the purpose, usage and linking of data. He further said that a citizen does not know or have any control over what happens to the Aadhaar data and is reduced merely to an object of information.
He then concluded his arguments by distinguishing between the localized, multi-interface biometric information contained on phones and the centralized database in Aadhaar.
Senior Advocate P.V. Surendranath commenced his arguments by stating that Aadhaar Act should pass both the tests of arbitrariness and rationality under Article 14 to be valid. He submitted that the impunged Act did not pass the muster of Article 14 and hence is unconstitutional.
He then referred to an article and mentioned the incident wherein FBI had to apologize to a person dur to false fingerprint match. He concluded by stating that there is no opt-out option and absence of control to citizens in case of Aadhaar.
Next, Senior Advocate C.U. Singh made his submissions on child rights and submitted that India is a signatory to the Convention on Rights of the Child and accordingly enacted domestic laws like Juvenile Justice Act, 2000 and Protection of Children against Sexual Offences Act, 2012. He stated that these legislations protect and ensure the privacy of the child. Further, referring to the ‘fresh start’ concept under Juvenile Justice Act, he stated that there were provisions which require the records of the delinquent child to be deleted.
He further submitted that under the Indian law, a child cannot give consent or enter into a contract. Thus, a child cannot be deemed to have given consent under Aadhaar which involves parting with data permanently. Reading the Puttaswamy judgment, he further stated that fundamental right to education cannot be subjected to production of Aadhaar. He concluded by saying that personal data belongs to an individual and not the state, and hence it cannot be nationalised.
Next, Senior Advocate Sanjay Hegde began his submissions, challenging the Act for violation of Article 25 – Freedom of Conscience and freedom of religion. Giving a reference of mark of the ‘Beast’ from the Book of Revelations, he argued that an individual has freedom of conscience and that there should be an exception for conscientious objectors to not enroll for Aadhaar.
Advocate Jayna Kothari then put forth her arguments regarding rights of transgender and sexual minority. She contended that Aadhaar Act discriminated against sexual minorities. Reading Section 2(k) of the Act, she said that while issues regarding biometric information has been discussed in detail, not much has been said about demographic data collected under the Act. She further argued that transgenders face a lot of issues getting Aadhaar as they do not have a gender identity documents required to enroll for Aadhaar. She contended that while caste and religion are left out, gender is a compulsory field resulting in violation of privacy and equality. She cited a decision of Supreme Court of Philippines stating that it struck down a similar national biometric ID system.
Next, Advocate Prasanth Sugathan appearing in I.A. No. 12907/2017 raised the issue of Non Resident Indians facing difficulties in availing various services and them being discriminated against for not being eligible for Aadhaar.
Advocate N.S. Nappinai then made a short submission saying that Aadhaar made the cyberspace vulnerable and posed a threat to national security.
With this the petitioners concluded their submissions.
The hearing will continue and the respondents will commence their arguments on Wednesday, 21st March 2018.
