Day 31 Arguments

April 19th 2018

On the 30th day of arguments, Mr. Rakesh Dwivedi had argued that the Aadhaar does not lead to exclusion of any kind. Today, he began with a quote by Amartya Sen: “Development requires the removal of major sources of un-freedom, poverty as well as tyranny.”

To this, CJI Misra said that ‘liberating people from un-freedom (poverty)’ is at one end of the spectrum and the ‘right to privacy’ is at the other. Mr. Dwivedi reiterated that Aadhaar brings the benefit-provider face to face with the beneficiary. Chandrachud J felt that it is not the best model, as it reduces individuals to supplicants. Mr. Dwivedi continued his arguments. He pointed out how other countries have economic and social rights in their respective Bills of Rights. Mr. Dwivedi read the statement of objects and reasons of the Protection of Human Rights Act 1993. He argued that the Aadhaar is the culmination of various Supreme Court precedents on economic and social welfare.

Mr. Dwivedi argued that the Supreme Court must look at the right balance of rights. In Subramanian Swamy v Union of India, the right to freedom of speech was balanced against the right to reputation. He quoted X v. Hospital Z, G. Sundarrajan v. UOI, Ashan Ranjan v. State of Bihar, In Re: Noise Pollution to argue that “larger public interest” and “interest of the collective” must be the guiding factor to decide a conflict of fundamental rights, especially if the conflict is within the same article (Article 21). He argued that Section 7 of the Aadhaar Act protects the human rights of many citizens of the country. The Supreme Court should act as a sentinel to ensure that right to privacy is balanced with all the other rights under Article 21.

At this point, Chandrachud J clarified that the Supreme Court has never allowed the suppression of civil rights, when the conflict is between different rights of the same individual. Mr. Dwivedi responded that Aadhaar does not suppress civil liberties. He then pointed out that the state could ban prostitution or manual scavenging even if people chose to engage in such work.

Mr. Dwivedi argued that privacy is a small price to pay for ensuring that the majority of the population enjoyed life and the rights under Article 21. Moreover, data collected by Aadhaar is basic data, which is already publicly available. Thus, there is no reasonable probability of privacy being violated by the collection of such demographic data. He argued that the Aadhaar Act distinguishes between demographic information, optional demographic information (eg. mobile number), core biometric information, and biometric information (eg. photographs). The reasonable expectation of privacy will differ with the kind of information. Sikri J pointed out that it still raises an apprehension that there could be unauthorized use of the data. Mr. Dwivedi responded that the fear must be real, not imagined. CJI Misra retorted that Mr. Dwivedi could not make such a subjective judgment.

With that, the 31st day of arguments concluded. Mr. Dwivedi will resume his arguments on April 24th 2016.

(This post relies on the contributions of Mr. Ayush Puri)