Thread by @SFLCin

#Aadhaar final hearing- Day 19: Hearing to commence shortly. Meenakshi Arora will resume her arguments.

MA: Continues with Szabo case. Hands over a written submission.
Argues on the point of purpose limitation. Says there's no purpose limitation in case of Aadhaar.

MA: Refers to a judgment of EU- Tele 2 on data retention. Reads on the relevant excerpts.

MA: Now comes to UN general assembly resolution of Nov 2016 on Right to Privacy in Digital Age.
Reads the excerpts showing power of metadata.
Further reads another resolution passed in 2014 on surveillance.

MA: Says that surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression.

MA: Refers to an expert report of Respondents which says that surveillance using data in CIDR is possible.

MA: Now comes to her next submission.
Says that collection, aggregation and retention of personal data under Aadhaar has has no defined purpose and thus doesn't meet the test of proportionality and strict necessity.

MA: Refers to Tele2 case wherein the Court held that even for the purpose of prevention of serious organized crimes like terrorism, the law, which allowed for retention of data, failed to meet the test of proportionality.
Reads relevant excerpts from the case.

MA: Reads the report of the United Nations High Commissioner for Human Rights on The Right to Privacy in the Digital Age of 2014.
Reads:"it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures...

...on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate."

MA: Reads Canara Bank judgment with respect to unbridled power being given to authority.
Reads "The possibility of any wild exercise of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out."

MA: Says that lack of foreseeability and apprehension of abuse justifies intervention by the court in present case.

MA: Says that Aadhaar act contains no provisions for data protection, apart from a mere obligation on the Authority to ensure security of the information which again is vague and doesn't lay down any data security standard or prescribe measures in case of data leak.

MA: Says that in Aadhaar project, there are no judicial safeguards or effect remedies in case of breach.

MA: Again submits that Aadhaar has a chilling effect on exercise of fundamental rights.
Refers to Jeremy Bentham's idea of ideal security institution- Panopticon for reforming inmates.

MA: Submits that Aadhaar infringes the right to dignity of the individual as it amounts to requiring a licence for exercising fundamental rights.

MA: Says that making Aadhaar sole means of identification is neither wise nor fair as primary objective of govt. schemes is to ensure that beneficiaries get the services instead of being excluded.

MA: Concludes her arguments.

Senior Advocate Sajan Poovayya commences his arguments.

SP: Says that a legislation may satisfy the tests of restrictions, however, looking from the lens of technology, the same legislation may prove to be intrusive.

SP: Says that compelling state interests is ensuring the identity of individuals. But it must be achieved using least intrusive methods.
Assuming biometric technology is not bad, then least intrusive method is using a card with a chip which stores the biometrics.

SP: Says that in a democratic society, an individual must have the right to decide how much info she wants to submit.

SP: Says that in case of a chip being used, the chances of biometric failure is also reduced.

SP: Says that even if we accept that biometric info is necessary, then what all biometric info must be made mandatory to be provided?
Submits that definition of biometric info is open-ended.

SP: Asks if later DNA helix is made mandatory then whether keeping DNA helix in a centralised database is a least intrusive method.

SP: Refers to a German decision of 1983. Says that what might be least intrusive today may become more intrusive tomorrow.

SP: Says that Aadhaar doesn't stand on the same footing as Census data where statistical data of all the citizens is taken which also has a lot of protection.
Asks why should Aadhaar data be given less protection then when it contains more sensitive data?

SP: Further reads relevant excerpts from the German Census case of 1983.

SP: Says that we don't have a data protection legislation in India.
Says that in case of phones or Google servers which have multiple interfaces, possibility of collation of data is not there since GDPR stops them from doing so.

SP: Says that in case of Aadhaar, there's a centralised database unlike the localisation of data as in the case of phones which causes problems.

SP: Says that biometric per se is not bad but when used in connection with technology, it becomes bad.

Bench rises for lunch. Petitioners to continue and finish within half an hour post lunch.

Court Resumes. Senior Advocate P V Surendranath commences his arguments.

PVS: Says that the Aadhaar Act should pass both the tests of arbitrariness and rationality under Article 14 to be valid.

PVS: Refers to two articles. Also gives example of a case of false match of biometrics.

Senior Advocate CU Singh begins his arguments.

CS: W.r.t the rights of child, submits that India has acceded to the Convention on Rights of the Child and enacted Juvenile Justice Act and POCSA.

CS: Says that the legislations ensure the privacy of the child.Takes the court through the provisions of the Act wherein there is a provision on info related to the delinquent child to be deleted.Says that under law,a child has no right to give consent or to enter into a contract

CS: Further says that child cannot be deemed to have given consent under Aadhaar. That too when it involves parting with data permanently.

CS: Says that fundamental right to education cannot be subjected to production of Aadhaar.

CS: Refers to the Puttaswamy judgment on the rights of the child.

CS: Reads out his note highlighting major points in the case.
Says that personal data belongs to individual and not the State. It cannot be nationalised.

Next, Sanjay Hegde, Senior Advocate starts his submissions.

SH: Is representing a client having objections based on religious theology. Refers to Article 25 of the Constitution on freedom of conscience and freedom of religion.

SH: Says that John Abraham, was a student in a Mumbai school but was denied admission to class 12 for non-production of Aadhaar.

SH: Reads from the Book of Revelations about the mark of the 'Beast'. He says that Aadhaar is that mark/number of the Beast.

Sikri J asks to provide constitutional basis for the arguments.

SH: Says that the individual conscience of the petitioner leads in good faith to the conclusion that he cannot apply for Aadhaar number. Thus, there should be an exception for him.

SH: Points out the distinction between freedom of conscience and freedom of religion.
Says that question of conscientious objective was well known to the makers of constitution.

Sikri J remark that it is an interesting argument and says that they will consider it.

Counsel Jayna Kothari appears for an organization that represents the rights of transgenders and sexual minorities

Talks about section 2(k). Says much has been discussed about Biometrics but not demographic data collected under the #aadhaar act

JK: Transgenders cannot get aadhaar because they don't have gender identity documents required by aadhaar. Caste, religion is left out but not gender. It's a violation of privacy and equality

JK cites a decision of Philippines SC. Says a similar system was implemented in Philippines but was scrapped later by the Supreme court

Prasanth Sugathan appears for NRI petitioner. Says it's difficult for an NRI to file taxes due to them not being eligible to get an aadhaar. Says procedure is cumbersome. Asks court for directions.

Next, Advocate Prasanth Sugathan raises the issue of Non Resident Indians facing difficulties in availing various services and them being discriminated against for not being eligible for Aadhaar. Permitted to file written submissions.

He is appearing in IA 12907/2017 for an NRI.

Advocate N S Nappinai is next with her brief submissions.

Court rises. Attorney General to commence his arguments on behalf of respondents tomorrow.