Aadhaar Hearing [Day 3]: Present Aadhaar Act imposes complete surveillance on citizens : Shyam Divan

On Day 3 of the Aadhaar hearing Senior Advocate Shyam Divan continued with his arguments based on 9-judge bench Privacy judgment before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Below are the highlights from the hearing:

Arguments advanced by Senior Advocate Shyam Divan, appearing for petitioners:

  • It is impossible to visualise in advance all the possible harms that can result from proliferating data sets. (Reading from Privacy Judgment)
  • Privacy is the constitutive core of human dignity and the foundation of ordered liberty. It recognises the individual’s right to control vital aspects of their life. It is not lost or surrendered merely by being in a public place.
  • The Privacy judgment affirms that privacy has always been a fundamental right, and the correct position has been established by a number of judgment after Kharak Singh v. State of U.P.
  • 8 takeaways from Privacy Judgment relevant in the context of Aadhaar matter:
    • Privacy is a natural right, a condition precedent to the enjoyment of any other fundamental right, it includes the right to control the dissemination of information.
    • The sanctity of privacy lies in its relationship with dignity. Privacy is a postulate of human dignity itself.
    • Privacy is integral to liberty and freedom.
    • Privacy has both negative and positive components. In its negative concept, it protects the individual from the State. In its positive aspect, it casts an obligation upon the State to protect individuals from non-State actors.
    • Privacy is not an elitist concept. The subordination of civil and political rights to econmic and social rights has been used for some of the most egregious violations in history.
    • Information in silos, when aggregated, can be a threat to freedom.
    • Privacy can be restricted only by a law that is just, fair, and reasonable.
    • Rule of law and the necessity of judicial remedies.
  • Discussion on provisions of Aadhaar Act, 2016:
    • Section 3 talks about enrolment wherein words used are “shall be entitled to obtain.” “Consequently, getting an Aadhaar number is a right, not an obligation.” The concept of informed consent, which is reflected by the counseling requirement, will become completely illusory if the mandatory character of Aadhaar is upheld.
    • Section 4‘s enrolment procedure is completely compromised and has no oversight. Under Section 4(3), the data can be used as proof of identity for any purpose.
    • Section 6 provides for updation of data as “biometric information changes over time.” This compromises the whole idea of uniqueness.
    • Section 7 effectively allows Aadhaar to be made mandatory for receipt of benefits or services. This provision negates the right of the individual to identify herself in a reasonable alternative manner.
    • Section 23 lays out the powers and functions of the UIDAI.
      • UIDAI has been given vast powers, for example, to add to the biometric indicators (such as DNA), under regulations. It is allowed to contract out the security of the database. This raises security concerns, and has been documented and shown in the record.
      • UIDAI has the power to deactivate an Aadhaar number. This is effectively a power to deprive an individual of all Civil rights.
      • UIDAI is allowed to enter into memoranda of understanding with other bodies, public and private.
    • Section 32 talks about the Aadhaar Enrolment Regulations, which provide for storage of metadata. It’s not that somebody is sitting and tracking you. The point is that the architecture is what enables a surveillance State.
    • Section 47 says that individual has no right to complain in case of a violation of the Act, and only the UIDAI has that power.
    • Section 48 allows the government to take over control of the entire record by citing a public emergency.
    • Section 51 allows for delegation.
    • Section 53 gives power to make rules and regulations.
    • Section 57 allows the use of Aadhaar to establish identity for any other purpose.

Questions asked by the Bench:

  • Chandrachud, J: There are two claims. First, that the program is unconstitutional. And secondly that there have been breaches that need to be plugged. Will you be will be making both arguments?
  • Shyam Divan: The key question is whether an individual is entitled to protect herself by making a choice about which method to use to identify herself. The breaches help to substantiate the strength of this basic claim i.e. the claim to make a choice. The concern is that you will end up having a complete surveillance society of this system in its present form is allowed to stand.
  • Chandrachud, J: Can’t you obviate the problem of aggregation of data sets by specifying in law that data can be used only for the purpose that it is collected?
  • Shyam Divan: There is a crucial distinction between private parties and the State. With private parties I can opt out.
  • Chandrachud, J: To what extent do you have an actual choice in today’s world, even with respect to data shared with private parties?
  • Shyam Divan: The point is that the State has for more power with respect to an individual.
  • Sikri, J: To what extent can Aadhaar be used?
  • Shyam Divan: In a democracy, there has to be a certain amount of trust between State and individual. So if an individual says that she has an alternative way of identifying herself, the State needs to accord that basic trust and respect and allow it, as long a that alternative is reasonable. This is especially so because biometrics are probabilistic.
  • Sikri, J: What is the harm if you’re just giving the number and nothing else, no biometrics?
  • Shyam Divan: You may not want to have this information spread around. The number when used with other information publicly available can be compromising.
  • Chandrachud, J: Biometric information remains only with the CIDR.
  • Shyam Divan: This is not so. (Gives example of fingerprints being skimmed off)

Bench will continue the hearing tomorrow.

To read the highlights from Day 1 and Day 2 of the hearing, click here and here.

Also, read the background of the Aadhaar matter here.

Source: twitter.com/gautambhatia88

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