SC Constitution Bench on Aadhaar – Final Hearing (Day XIX) (Part II)

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.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

The next petitioners were represented by Senior Counsel PV Surendranath.
He stated that there was a direct impact of violation caused by the Aadhaar programme. He stated that there had been a direct impact of violation of Article 21 and that the Aadhaar programme would also not pass the test of rationality.
He also stated that after biometric and democratic data had been divulged, a citizen would have no control over their data and it would amount to a unilateral decision. He also commented on the irrationality and the unreliability of the concept of the programme.
He then moved on to discuss the reliability of fingerprints, referring to the FBI’s 2004 statement (relating to Brandon Mayfield).
Mr. Surendranath concluded his submission and Senior Counsel C.U. Singh commenced with his submission.
He discussed the Convention on the Rights of Children and child rights in relation to Aadhaar. He discussed Article 8 and 13 of the Convention. He also discussed the Juvenile Justice Act of 2015 in this regard. He stated that the rights of children to privacy are expressly protected under the Protection of Children from Sexual Offences Act and the Juvenile Justice Act.
Mr. Surendranath went on to read out relevant provisions of the Juvenile Justice Act. Further he stated that a child in India had no right to give consent and right to enter into a contract. In this regard, he referred to relevant provisions of the Indian Contract Act. He questioned how a child could be made subject to a permanent system of Aadhaar if they could not operate their own bank account.
Further, he stated that mandating Aadhaar in certain aspects was also affecting a ‘fundamental right to education’ and subjecting it to parliamentary legislation. All these aspects were taking away the rights of children.
Referring to the Justice Kishan Kaul’s judgment in Puttaswamy, he briefly discussed privacy qua the rights of the child.
Moving on, he discussed the Aadhaar Act. He discussed exclusion under Section 7 of the Aadhaar Act and stated that the Act had become a tool for exclusion rather than a tool for inclusion.
On the issue of personal data and security breaches, he stated that the Courts intervention was called for. He also stated that alternatives to the current system should be considered, specifically implementations which are necessary and less intrusive.
Further he discussed mid-day meal schemes and the requirement of Aadhaar and also how the programme affects the most vulnerable sections of the society.
Mr. Surendranath concluded his submission and Senior Counsel Sanjay Hegde commenced with his submission.
He stated that the mandatory nature of Aadhaar went against certain religious beliefs. He commented on the concept of a ‘conscientious objector’ and the right of conscience. He also stated that the petitioner could not conscientiously be asked to follow their religious faith and apply to Aadhaar, since it wasn’t in line with their faith.
Justice Chandrachud questioned if a persons conscience could disallow them from enrolling for income tax.
In response, the Counsel commented on the requirement of helmets for Sikhs.
Chief Justice Dipak Misra referred to Article 25 stating that the application would be independent of our individual concerns.
Further, Mr. Hegde commented on ‘conscientious objection’ in the context of the World Wars and exclusion from military service.
Justice Sikri stated that the Bench would consider the argument.
Senior Counsel Hegde concluded his submission and Counsel Jayna Kothari commenced her submission.
She stated that her submission would discuss how the rights of people from the transgender community would be affected by Aadhaar.
She stated that the definition of biometric information in the Aadhaar Act could be amended and that requirements like DNA could also be introduced someday. She stated that demographic information includes information relating to name, date of birth, etc. She stated that while the Aadhaar enrolment form had provisions for identifying as transgender, the PAN card didn’t and other forms of identification did not. This would create issues for filing income tax returns.
She also stated that there was no uniformity in gender identity and that there would not be similar identities across systems.
Further, she stated that to identify as transgender under the Aadhaar Act, a citizen would have to produce other documents in support. She stated that to be able to identify as transgender, certain identification systems also required transpeople to have first undergone medical reassignment surgery. This would be disadvantageous for transpeople who would choose to not undergo gender reassignment surgery and also those who were in the process. She stated that a right to gender identity was guaranteed under Article 21 of the Constitution.
She also stated that tying the grant of benefits to Aadhaar would also imply that people may have to reveal their gender identity’s by force. Referring to the Puttaswamy judgment, she stated that there were some markers which should be specifically prohibited, like caste and also gender identity. She stated that this mandatory requirement would possibly threaten the lives of trans people and open them to abuse. She referred to Section 377 of the IPC and the Telangana Eunuchs Act in this regard.
Referring to a decision by the Supreme Court of Phillipines, she referred to the national computerised identification system which was similar to Aadhaar and was attempted to be instituted in the ‘90s. However, the Supreme Court invalidated the programme on the grounds of privacy.
Lastly, she also commented on the requirement of Aadhaar for HIV treatment.
She concluded her submission and Counsel Prasanth Sugathan commenced his submission.
He discussed the requirement of Aadhaar and how the cumbersome procedure affected those who were already in a disadvantaged position. He also commented on how the Aadhaar programme affected the financial services available to NRI’s.
Mr. Sugathan concluded his submission and Ms. N.S. Nappinai commenced her submission.
She stated that the entire Aadhaar scheme was being put forward on the scheme of national security and referred to the Talinn manual in this regard.
She referred to the concept of national security, and life and liberty in Romania and Canada. She also discussed the kill switch argument being used with regard to internal threat. She also stated that digital ghettoisation was taking place.
The petitioners have concluded with their submissions and the respondents will commence on the 21st of March, 2018.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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