Day 4 Arguments

January 24th 2018

In the previous hearing, Mr. Shyam Divan read out excerpts from the Right to Privacy judgment.

Today, Mr. Shyam Divan submitted that a violation of fundamental rights could not be remedied retrospectively, therefore there was a need to read section 59 of the Aadhaar Act in a narrow manner. Section 59 validates all actions of the UIDAI pursuant to its notification on 28.01.2009 and prior to the coming into effect of the Act in 2016. He further stated that the scope of Section 59 was limited to acts undertaken by the Central Government and neither private entities nor the Registrars whose actions were under the MoUs would fall within the purview of the Section. Enrollments prior to the enactment of the Aadhaar Act would, therefore, be invalidated.

The broad focal points of Mr. Divan’s arguments can be summarized as under:

1. Aadhaar and Privacy: Mr. Divan argued that every individual in a digitized society had the right to control the dissemination of personal information and compelling persons to furnish biometric and demographic data, as was being done under Aadhaar, was a violation of their privacy right.
2. Aadhaar did not meet the test of Articles 14 and 21: The collection of personal data without the informed consent of the individual on how the data would be used, coupled with the fact that the individual was not given the choice to opt out of the Aadhaar programme resulted in an intrusive form of identification being compulsorily imposed on citizens, which not consistent with democracy.  In this regard, Section 7 of the Aadhaar Act in particular, under which the impugned notifications had been issued did not stand the test of constitutionality, for it made the availability of entitlements contingent upon the forsaking of constitutional rights. Mr. Divan cited Section 15 of the Census Act, 1948, Section 7 of the Identification of Prisoners Act, 1920 and Section 32A of the Registration Act, 1908 as legislations where personal data had been collected for legitimate state purpose, and pointed out that this had not been done in a proportionate manner in the case of Aadhaar.
3. Limited Government: The Constitution is the legal source for limitations to be placed on State power to prevent excesses on individual rights. The Aadhaar, on the contrary, enabled the exercise of excessive state authority to the extent that the absence of an Aadhaar number resulted in “civil death” of citizens.
4. Surveillance: The Aadhaar scheme empowered the State to collect data over a period of time and thus facilitated the profiling of individuals, communities or sections of society. Section 57 of the Aadhaar Act was worded in a manner that would enable the scope and extent of such surveillance to only broaden with time. In support of his arguments on Surveillance, Mr. Divan tendered affidavits of technical experts and further argued that the information provided substantiated the claim that Aadhaar had put in place mechanisms for real-time tracking of individuals by mapping their electronic path and provided an architecture for a police State. He cited the decision of the US Supreme Court U.S vs. Jones and ECHR decision in Sakharov Vs. Russia in addition to the decision in Kharak Singh vs. State of U.P (1963) to submit that surveillance was a curtailment of life and liberty.

The Bench will resume hearing the matter on Tuesday 30.01.2018