By Arpita Biswas
In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.
The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.
Mr. Viswanathan continued his arguments on the invalidity of Section 59 of the Aadhaar Act. He stated that there was no informed consent in instances of enrolment from 2009-2016 and several other procedural safeguards were lacking. He also stated that a ‘legislative declaration of facts is not beyond the scope of judicial scrutiny’. He relied on Indra Sawhney vs. Union of India, (2000) 1 SCC 168.
Justice Chandrachud questioned what the consequences of invalidating Section 59 would be, and further questioned if all data between 2009-16 would also stand invalidated as a result.
Mr. Viswanathan responded, stating that the data should stand invalidated and should be destroyed, as consent could not be given retroactively. He stated that it was a matter of human rights in terms of personal search, and further referred to a case on gynaecological examination done without informed consent.
He then went on to discuss collection of data and the mandatory nature of Aadhaar.
He stated that data could not be bartered or forced to be bartered.
Referring to the Ahmedabad St. Xavier’s College Society v State of Gujarat case, he stated that one could not be forced to barter away their fundamental rights. He then referred to a South African case (Jordan vs. State) on bodily privacy. He also referred to the Planned Parenthood case and Roe vs. Wade.
Moving on to the argument on handing over sensitive data to states as opposed to private parties, he stated that the state should be held to a higher degree of scrutiny and that the principle of proportionality would be relevant in this regard.
Referring to the recent judgment on passive euthanasia (Common Cause vs. Union of India), he questioned whether the citizens were ‘guinea pigs’ for the UIDAI and the Union.
He also stated that the UIDAI should be requested to hand over numbers on errors of biometric authentication. Further, he stated that there was an undue burden on people to authenticate, which was unconstitutional.
Referring back to the Common Cause judgment, he discussed the portions on free and informed and the right to die and the duty to live.
He also discussed the ECHR judgment of MK vs. France, stating that the whole population’s identities could not be stored to justify the detection of fraudulent identities. Drawing out a hypothetical situation, he questioned whether maintaining a database with DNA samples of males could be a justification to prevent sexual violence.
Mr. Viswanathan then proceeded to read out excerpts from the Marper case.
He referred to the point of enrolling agents being private entities and the lack of judicial oversight. He also referred to the Bombay Habitual Offenders Act to make a point on the lack of independent oversight during enrolment.
Referring to Justice Brandeis’ dissenting judgment in Olmstead vs. US, he stated that the state could not be allowed to become a law breaker in order to catch a law breaker.
On the issue of storage, he stated that there was no specific statutory backing and that there seemed to be no mandate to store such data in the CIDR. He also stated that the inability to access one’s own biometric data was in violation of Article 19 and 21 of the Constitution.
Further, he stated that the Act lacked a purpose limitation. He also stated that the state had failed at discharging off its burden.
Moving on, Mr. Viswanathan stated that Section 7 of the Act was unconstitutional. He also stated that Aadhaar had the capacity to do grave damage.
On the point of exclusion caused by Section 7, he stated that this was not merely a question of poor implementation but was also a fault of the law. He referred to the reported case of inadequate server capacity and the subsequent authentication failure in Rajasthan.
He reiterated that there was an undue burden being created on the citizens.
Referring to the spousal notification requirement in the case Whole Woman’s Health v Hellerstadt, 136 S.Ct. 2292 (2016), he discussed the respondent’s submission, stating that the notification requirement would only affect 1 % of women and would not impose a problem on the majority of women. The Court in this case disagreed with the submission, stating that the fact that a majority of the population would be unaffected did not validate the notification.
He also referred to the Vijaysingh Chandubha Jadeja vs State of Gujarat case of 2011.
Lastly, he discussed smart cards and their efficiency. He also discussed the issue of leakages, stating that even in instances where Aadhaar had not been issued, it had been claimed that leakages had been prevented. He also discussed the issue of PDS irregularities.
Mr. Viswanathan will conclude his arguments in the next hearing.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi