Aadhar Hearing Day 19: The core problem with Aadhaar is centralisation instead of localization alleges Sajan Poovayya. Petitioners conclude the case.

The Constitution Bench resumed hearing the Aadhaar case at 11.40 am today. Meenakshi Arora resumed her arguments that indiscriminate collection of data is akin to a general warrant, issued without probable cause or suspicion. She read out judgments from the ECHR (Zabo) and the German Federal Court, which ruled that long periods of data retention violated privacy rights and further handed over a written submission to the bench.

Arguing on the point of purpose of limitation she stated that there was no purpose limitation in case of Aadhaar. Arora then referred to a judgment of EU- Tele 2 on data retention. She then moved on to UN general assembly resolution of Nov 2016 on Right to Privacy in Digital Age and read out the excerpts showing power of metadata. Further she read out another resolution passed in 2014 on surveillance. “Surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression.” She argued while referring to an expert report of Respondents which said that surveillance using data in CIDR was possible.

Moving on to her next submission, Meenakshi Arora argued that collection, aggregation and retention of personal data under Aadhaar had no defined purpose and thus does not meet the test of proportionality and strict necessity. Meenakshi Arora again referred to Tele2 case wherein the Court held that even for the purpose of prevention of serious organized crimes like terrorism, the law, which allowed for retention of data, failed to meet the test of proportionality. Arora further read out the report of the United Nations High Commissioner for Human Rights on The Right to Privacy in the Digital Age of 2014 which stated, “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.”

Meenakshi Arora argued that our history warns us to be careful about this claim. She stated that the protection we were seeking was not for the here and now, but for generations to come. She alleged that there can’t be unfettered executive discretion simply by invoking national security.

Moving further Arora traced out how the government went from encouraging people to get an Aadhaar and allowing alternative forms of identification, to mandating it. She argued that the proviso to Section 7 should be read down. When it says “if an Aadhaar number is not assigned”, it should be interpreted to mean that those without an Aadhaar should be allowed to use other identification, she claimed.

However Sikri J and CJI disagreed with this interpretation.

Meenakshi Arora then read out the SC’s Canara Bank judgment, which said that although the possibility of abuse might be remote, if the framing of the Act enabled it, it raised constitutional issues.”At least, there must be provisions for periodic deletion of data.” Arora claimed. Arora pointed out that there was no scope for judicial review under the architecture of the Aadhaar Act. She also cited Michel Foucault to say that an asymmetry of knowledge leads to an asymmetry of power.

She argued that the stated purpose of such schemes was always to reform people – but it’s impact was that of suppression.”Tthe State is not allowed to make the exercise of fundamental rights subject to a license, which is probabilistic. This deprives individuals of control over their identity, and violates dignity.” Arora alleged.

Finally Meenakshi Arora concluded by saying that Aadhaar treats citizens as subjects, and should be struck down.

Thereafter Senior Advocate Sajan Poovayya commenced his arguments. He pointed towards the German census case. “While a legislation may pass the test of proportionality and least intrusion in the brick and mortar world, it may not in the world of technology – and specially information technology.” Poovayya alleged. He argued that there may be a compelling state interest in Aadhaar – to identify people accurately. But that must be achieved in the least intrusive fashion. “Aadhaar does not achieve that” poovayya claimed.

Sajan Poovayya then took the example of credit card chips and said that the least intrusive use of biometrics was to store them on the card itself. “When you go to get your ration, the authentication will be from your fingerprint then, to your fingerprint stored on the chip. This is a less intrusive way of achieving the same goal, because you don’t need a central database.” Poovayya argued.This allows people to control their own data, and this is the core of the right to informational self-determination, he stated. “This will be more accurate, because you aren’t matching with a database of 1.3 billion people. So there is less chance of exclusion.” He added

Sajan Poovayya then claimed that it was not just Sec 57 that mad the Aadhaar Act bad. What made it bad was that the definition of biometric is open ended, and the government could add to it through regulations, he said.”This is not about possibility of misuse, but possibility of use. The definition allows for vastly expanded use, which can subsequently include DNA and even plasma.” Poovayya pointed.

He then read out the German census case from 1983 where the German Court said that proportionality requires clarity about the purpose, use and linking of data. Alleging that Aadhaar reduces an individual to an object of information, Poovayya sai, “ I am a citizen who do not know and have no control over what happens to the Aadhaar data.”

Sajan Poovayya then concluded by drawing the distinction between localised, multiple-interfaced biometric information to, e.g., the phone, and the centralised database in Aadhaar. He stated that the private entities gave much more control over one’s information, and at best could use it for commercial purposes. “And if there’s a violation, I can sue them” he added. “The core problem with Aadhaar is centralisation instead of localisation.” He claimed.

Thereafter the Bench rose for lunch and resumed arguments after 2:30 pm.

The bench asked the petitioners to conclude their arguments. Adv Surendranath began his argument that if it is shown that the Aadhaar Act is arbitrary and violates Article 14, it is unconstitutional, and no actual violation need be shown.

Sikri J however remarked, “We have come to a stage where there is so much information about Aadhaar on both sides. How do we sift through and decide? To which Adv. Surendranath said that the core point is that one is deprived of control in the decision-making process – that is, at the time of authentication. He then talked about the incident in Spain where the FBI had to apologize to a person because his fingerprints had been a wrongly matched. He stated that countries all over the world are moving away from fingerprint-based identification.

Advocate CU Singh took over next and stated that one crucial issue was that of the rights of children. He read out the Convention on the Rights of Child, to which India has acceded.”The right of the child to privacy is expressly protected in the Convention and in Indian laws. Further there is a principle of “fresh start” under the JJ Act that requires deletion of records. A child in India, under law, cannot consent or enter into contracts. In this background, to say that a child should be made subject to a mandatory regime of Aadhaar, stands on a different footing.” CU Singh argued. He pointed out that nowadays infants are being footprinted immediately after birth. ‘This is not permissible’.he added.

CU Singh argued that the right of the child to education cannot be made subject to Aadhaar and that the Puttaswamy judgment specifically recognised the right of the child. CU Singh then handed over a concluding note that set out the major issues that the Court most decided in Aadhaar. Lastly, CU Singh pointed out that Aadhaar has been made compulsory for EPFs.”This has been done without statutory backing, and is therefore illegal.” He added. He also mentioned that the right of the homeless, who, because of a lack of a fixed abode, are suffering specific problems, must also be addressed.

Moving further Sanjay Hegde argued next on behalf of the petitioners. He stated that he was representing a conscientious objector. “There are religious objectors whose freedom of conscience must be respected.” Hegde alleged.

The last intervention application was on the right of transgender persons. It was argued by Jayna Kothari. “With respect to transgenders, demographic information becomes a major issue.  Aadhaar Regulation 4 of 2016 require demographic information. The form has third gender, but there is no uniformity across the board, and you have to produce other documents to get an Aadhaar, some of which may not have had that option.” Jayna Kothari argued.“Non-recognition leads to denial of benefits.” She added. Jayna Kothari then pointed towards a decision of the Supreme Court of the Philippines that struck down a national ID system. Petitioners finally concluded.

The Bench then rose for the day. The State will commence arguments tomorrow.

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