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#Aadhaar final hearing-Day 3:
Hearing to resume at 11:30 AM in #SC.
To refresh your memory, read the updates from Day 1 and Day 2 of the hearing here.…
Day 3 hearing commences.
SD: Refers to Para 300 by Chandrachud J. of Privacy Judgment on informational privacy.
SD: Now reads parts of the judgment which talk about privacy of the individual and his right to be let alone.
SD: Reads parts of Privacy Judgment which address the need for data protection, transparency, consent and data protection.
SD: Reads parts of Privacy Judgment which says that 3 requirements should be fulfilled:
1. A statutory backing.
2. Legitimate state aim.
3. Proportionality. Means adopted by legislature should be proportional to the object sought to be achieved.
SD: Refers to the paras which talk about privacy guaranteeing a bundle of entitlements. Safeguards individual autonomy. Protects heterogeneity.
SD: Refers to Para 351 of Chelamswar J. in privacy judgement talking about Constitution as a living document.
SD: Refers to the concurring opinion in para 371- There are 3 aspects of privacy- repose, sanctuary and intimate decisions.
SD: Takes the court through various aspects and scope of Right to Privacy.
SD: Refers to Para 383- limitations on privacy. Just, fair and reasonable standard under Ar. 21 must apply.
SD: Refers to Para 401 of Privacy Judgment which traces the development of Privacy.
SD: Reads out the portions of judgment which talks about privacy as a travelling right. Privacy acts as a springboard for the exercise of rights guaranteed by Part III.
SD: Refers to Para 426 of Bobde J. on standards of review for privacy violation.
Reads out Nariman J. decision. Para 478 which says that between right to life and right to privacy, right to life gets primacy.
SD: Refers to paras which talk about 3 aspects of privacy-
1. Privacy that involves person,
2. Informational privacy,
3. Privacy of choice which protects the individuals' autonomy.
SD: Refers to paras which discuss the inalienable nature of right to privacy.
SD: Refers to Kaul J. judgement. Reads parts which talk about right to privacy as a basic human right.
SD: Reads parts of judgement which speak of using technology for surveillance and profiling- which can result in discrimination.
SD: Reads out Para 620 which talk about privacy as a right to control dissemination of information.
SD: Refers to para 645. Privacy is a right which needs to be protected against both State and non-state actors.
SD: Reads out the operative part of the privacy judgment.
SD: Hands over a two and a half page summary of the judgment concerning right to privacy.
SD: Right to privacy is a natural right which is inalienable. It is the condition precedent for the enjoyment of other rights.
SD: Right to privacy is not an elitist's construct.
SD: Informational Privacy is a facet of right to privacy.
Bench rises for lunch. To resume at 2:30 pm.
Bench re-assembles for post lunch session.
Shyam Divan to continue with his arguments.
SD: Focuses on the Aadhaar Act now. Reads out the statement of object and reasons.
SD: Reads the long title and Preamble of the Act.
SD: Takes the court through the definitions in the Act.
SD: On definition of 'Benefits'- benefit is not necessarily defined by the govt.
SD: On definition of biometrics: not an exhaustive list.
SD: On 'core biometric information'- asks the court to compare it with the definition of 'biometric'. Says it is open-ended.
SD: On 'enrolling agency'- appointment may be either by a appropriate authority or registrar.
SD: On 'Registrar'- says it could be any entity, not necessarily a govt. entity.
SD: On 'Requesting entity'- again not a govt. entity but any agency or person, which includes private entities. Enables profiling of the individuals as statue requires to keep records of time and the requesting agency.
SD: On 'service' & 'subsidies'- definition is very wide and open ended.
SD: reads out section 3. Says it is the right of the individual to obtain Aadhaar and not an obligation.
SD: Asks the court to recall that the verification process is probabilistic in nature. Further, before the Act, there was no requirement of counseling.
SD: Reads out section 4. Says that the whole enrollment process is compromised. The earliest forms had the method of self-verification.
SD: Considering 49000 enrollers have been cancelled, what is the integrity of this data?
SD: Reads section 6. Says even UIDAI acknowledges that biometrics change over time.
SD: Reads section 7. Says the proviso to it provides for an alternate method to avail benefits and services.
SD: Reads out Section 8. Submits that this section again gives a notion of alternative.
SD: Refers to section 10 wherein a centralised database is required to be maintained by UIDAI.
SD: Reads on the composition and functions of UIDAI.
SD: Refers to section 23-powers and functions of the Authority. Can specify demographic and biometric information to be collected by means of regulations.
SD: They even have the power to deactivate the number. This is the amount to control they have over the individual.
SD: Goes on to read chapter VI on protection of information.
Reads section 29 dealing with restrictions on sharing information.
DYC: How does this bear upon the constitutional validity of the Act?
SD: The entire program is bad. And so is the statute as it provides a legislative backing to such a programme.
SD: If by providing biometrics, an individual thinks that she's imperiling herself, she has the right to protect herself.
SD: An individual has the right to
1. Not obtain an Aadhaar,
2. If she has an Aadhaar, then to not utilise it at every place. Avail alternatives instead.
SD: Points out towards section 32 on maintenance of authentication records.
SD: The whole architecture is nothing but of surveillance state.
Bhushan J.: Would it not be better to first formulate your point and then rely on statutory provisions?
Sibal: In this networked world, to what extent should the State gather my information under one umbrella?
Internet issues. Pardon for missing some very interesting exchanges.
SD: As per the privacy judgment, it the the obligation of State to protect the individual against the private actors. This right is enforceable against both State and non-State actors.
SD: Reads section 33 on disclosure of information in certain cases. Takes the court through penalties.
SD: Points out section 47 on cognizance of offences. Says an individual doesn't have any locus to approach the court as per this provision.
SD: Referring to section 48. Says that in case of public emergency, the entire record will go into the hands of central govt.
SD: Reads out section 57 on use of Aadhaar for other purposes than mentioned under the Act.
SD: Section 57, instead of confining the usage, extends the use to almost every entity- not just by a law but also under a contract.
Sikri J.: Merely by giving Aadhaar, can you get all the information?
SD: We'll have to understand the concept, first.
DYC: You're just required to give your Aadhaar number. Biometrics are there in CIDR.
Khanwilkar J.: Aadhaar establishes identity, doesn't give identity information.
Bench rises for the day. Arguments to continue tomorrow.
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