In today’s hearing on Aadhaar senior advocate Meenakshi Arora continued her submissions, appearing for Vickram Crishna and others. Her main contention was that one, collection, aggregation and retention of personal data on a mass scale under the Aadhaar Project is grossly disproportionate qua any purported object and therefore, is violative of the Right to Privacy. Two, Aadhaar impinges upon the Right to Dignity of the population, since it amounts to requiring a license for exercise of fundamental rights. Three, Aadhaar is violative of the Rights of Children.
Elaborating on the first point, Adv. Arora pointed out that Aadhaar Project’s mass collection and aggregation of personal data of all residents is in breach of fundamental human rights, including the Right to Privacy. In Digital Rights Ireland Ltd. v. Minister of Communications, the Court of Justice of the European Union (CJEU) held that the mass retention of individuals’ online traffic data, and disclosure of the same to law enforcement authorities, as invalid on the grounds of proportionality and violation of fundamental freedoms guaranteed under the Charter of the Fundamental Rights of the European Union (EU Charter).
The underlying premise and extent of freedom protected by the EU Charter is equivalent to the Rights guaranteed and protected by Part III of the Constitution of India, in particular with respect to the Right to Privacy. Adv. Arora referred to several European cases which clearly conclude that mere mass collection of data can lead to profiling and surveillance and aggregated data can reveal intimate private information about an individual, which leads to a feeling of being watched constantly, which has a chilling effect on the exercise of other fundamental rights such as the freedom of speech and expression. She said that collection of data and retention under Aadhaar is in the nature of “general warrant” and the same is impermissible without an emergent situation shown by the state.
Reading from European Court of Human Rights (ECHR) judgement dated 12 January 2016 in Szabó and Vissy v. Hungary, she pointed out “in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”
Adv.Arora pointed out that ”Aadhaar is a pancopticon that reduces all of us from being citizens to being mere subjects! Reads the passage from Fali Nariman’s during emergency that described how the situation was…the emergency having been a panopticon…Aadhaar becomes a license raj for Fundamental rights! She closed her arguments by reading through her notes on Aadhaar violating Child Rights and reiterates Aadhaar being unconstitutional as it fundamentally alters the relationship between state and citizen and reduces the citizens to being mere subjects.”
Following Meenakshi Arora, Sajjan Povayya, Sr. Advocate took over, arguing for Justice Byra Reddy, an intervenor in the matter. “Law hitherto dealt only with men and matter. Information technology is a totally different beast,” he pointed out. “Mass collection of biometrics is bad in law. Even if we were to use biometrics, a smart card or a chip card with biometrics stored locally is clearly a lesser intrusive alternative. No possibility of aggregation. No violation of informational self- determination. Section 2 (g) of the Aadhaar Act has an open ended definition of biometrics which is bad in law, he argued. “Section 2 (g) can tomorrow include DNA! Can collection of DNA for giving someone 2 kg of rice be a least intrusive alternative,” he asks. Adv. Povayya referred to the Census decision of German Court and how despite it being in an era where data processing was much slower, with computational power being limited, the German Court had the foresight to strike it down. “Collection of non-anonymized for unspecified or unspecifiable purposes is bad in law. He concluded by citing how biometrics for border control stands on a different footing.
In the post-lunch session Sr. Ad. PV Surendran, appearing for Kisan Sabha, intervenors, began his submissions by saying that the Aadhaar Act is irrational and violative of Article 14. It just cannot work.  He referred to the Brandon Mayfield fingerprints incident where FBI stood exposed on its fingerprint claims. Sikri J asked if they can rely on it as Union will show many to the contrary. PVS replies saying it is the duty of the Court to examine both opinions and conclude. Adv. Surendran then refers to Hans Mathew study, which said at any point the minimum failure rate of deduplication will be 1 in 121. PVS says in India’s population, this is a huge number and this alone is enough that renders the project irrational. He said that two more features of the project aggravate the irrationality: No opt-out and total absence of control to the citizen and asymmetry of control.
CU Singh, Sr. Advocate made a short submission on Aadhaar and child rights. He argues that since a child has no power or right to bind herself to anything, there is no compelling state interest to mandate Aadhaar and Aadhaar linkages with all sorts of things amounts to asking for an unconstitutional waiver of rights. He referred to the absurdity of taking heel prints for infants! Refers again to Article 21A and how Aadhaar makes 21A, an absolute constitutional right subject to legislation subordinate to the Constitution! He argued that the Aadhaar case deals with personal data jurisprudence…the whole Aadhaar Act is created upon the architecture that personal data is some national resource. Court has to establish clearly here that citizens don’t squat on their own personal data! Data is NOT the new oil, he asserts. CU Singh concludes by highlighting the plight of the homeless from his brief submissions.
Among the others who made their submissions were Sanjay Hegde, representing a conscientious objector, John Abraham who challenges Aadhaar as a violation of Article 25, that is Freedom of Conscience and Freedom of religion. Adv. Hegde said that Mr Abraham simply contends that he cannot in good faith enrol for Aadhaar and that there has to be an exception for conscientious objectors.
Adv. Jayna Kothari represented an intervenor organisation representing transgender and sexual minority rights. She said Aadhaar Act discriminates against sexual minorities. While biometrics has been argued at length, the same has not been done with demographic data and its implications. Aadhaar is being made mandatory for almost everything but transgenders cannot get Aadhaar because they do not have gender identity documents that Aadhaar requires.
Prasanth Sugathan made a brief point about NRIs. The way it is implemented, authorities are not sensitive (cannot be sensitive) to the fact that NRIs are not eligible to get Aadhaar number. His petitioner for instance had to give someone else’s Aadhaar to get a phone connection. There is no rule of law for NRIs. The Attorney General will begin his arguments tomorrow.