Thread by @prasanna_s

#Aadhaar hearing continues. Sr. Advocate Meenakshi Arora continues her submissions. Reminder, petitioners expected to complete their submissions in 90 minutes today.

Ms. Arora is appearing for @vvcrishna and others.

MA: Reading Tele2 German Constitutional court decision. (Her WS here: drive.google.com/a/advocatepras…)

MA elaborating on the chilling effect that is caused by a general and indiscriminate retention of personal and personal transactional data.

Aadhaar data collection of data and retention is in the nature of "general warrant" and the same is impermissible without an emergent situation shown by state.

Contrasts the Tele2 case where telecom metadata rentetion even for six months was struck down whereas in aadhaar all transaction meta data retained for seven years!

Meenakshi Arora reads from 9th March 2018 affidavit filed by Union of India. Refers to the admission that aggregation is a problem ...but will happen only under a state that does not go by law!

MA Court cannot take that risk and hope and pray that the State will forever ...

... benign.

Next argument on proportionality.

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 ( Sorry for the caps )

THE COLLECTION, AGGREGATION AND RETENTION OF PERSONAL DATA ON A MASS
SCALE UNDER THE AADHAAR PROJECT HAS NO DEFINED PURPOSE AND
CONSEQUENTLY, DOES NOT MEET THE TEST OF PROPORTIONALITY AND STRICT
NECESSITY

Reads from Szabo ECHR case:

However, 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.

MA: No specific purpose for Aadhaar. Refers to 139 notifications and various other notifications capturing 360 degrees of every individual's life.

Refers to S7, S57 and several other provisions that seem to equivocate on the purpose of Aadhaar.

Some discussion on the interpretation of Section 7. MA says the Regulation 12 of the Enrolment and Update regulations is ultravires Section 7. She argues Section 7 essentially does not make it mandatory but provides for alternatives.

MA then argues on lack of safe guards.

Rushing through. The reference to doc on WS enough.

Reading through her arguments on Risk of abuse and Chilling effect.

Meenakshi Arora now reading through her note on Jeremy Bentham's panopticon and the alteration of behaviour that it induces.

She makes the point of mere assymetry of information altering the power equation thereby causing a chilling effect.

MA: 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.

MA now rushes through her submissions on dignity and how Aadhaar becomes a license raj for Fundamental rights!

MA closes 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 citizen to being mere subjects.

Sajjan Povayya, Sr. Advocate takes over. He argues for Justice Byra Reddy...an intervenor in the matter.

SP: Law hitherto dealt only with men and matter. Information tech is a totally different beast.

SP: Compelling State interest of Aadhaar is precise identity so that imposters are not wrongfully benefitted.

But least restrive option has to be explored.

He adopts the position of petitioners that mass collection of biometrics is bad in law.

SP: 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.

SP: Section 57 is not bad in law, but Section 2 (g) that has an open ended definition of biometrics is bad in law. 2 (g) can tomorrow include DNA!

Can collection of DNA for giving someone 2kg of rice be a least intrusive alternative, he asks.

SP refers to 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. SP says dangers in this era are more real and profound.

SP reading from an English translation of the German decision on the Census Act.

SP: Collection of non-anonymized for unspecified or unspecifiable purposes is bad in law.

SP refers to GDPR principles to show how Court will have to look at the question of least intrusive alternative keeping in mind that there is no domestic data protection regime that has strict enforceability.

SP concludes by citing how biometrics for border control stands on a different footing..

Four more counsels to go. CJI capping petitioners by 3 pm.

Bench rises for lunch.

Post- lunch session begins. P.V. Surendran, Sr. Advocate, appearing for @KisanSabha , intervenors, begins his submissions.

He says Aadhaar Act is irrational and violative of Article 14. It just cannot work.

PVS relies on an article by the name " Tale of errors" ....

...referring to the Brandon Mayfield fingerprints incident where FBI stood exposed on its fingerprint claims.

Sikri J asks 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.

PVS then refers to Hans Mathew study which said at any point the minimum FPR 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.

PVS says two more features of the project aggravate the irrationality: No opt-out; Total absence of control to the citizen and asymmetry of control;

PVS concludes. C.U Singh, Sr. Advocate wants to make short submission on Child rights.

Refers to the Article in CRC that guarantees privacy of the child. Refers to legislative recognition for CRC an POCSA.

Refers to the principle of fresh start under the JJ Act. (C U Singh is appearing for @Joshita_Pai , Beghar Foundation and Nagarik Chetana Manch).

In terms of the background that the 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.

CU refers 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 a legislation subordinate to the Constitution!

CU next refers to the issues raised by @AnupamSaraph and in the Nagrik Chetana Petition. Says this requires some time but because he does not have it...he has handed over a written submissions.

Giving the link in a minute. But he makes it clear 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.

Link to his submissions : drive.google.com/a/advocatepras…

CU Singh concludes by highlighting the plight of the homeless from his brief submissions.

@sanjayuvacha takes over. He says he will be brief and promises to be brief, bold and be gone!

representing a conscientious objector, John Abraham who challenges Aadhaar as a violation of Article 25. Freedom of Conscience and Freedom of religion.

John Abraham(not actor!) is a Mumbai-based father whose son was denied college admission because he did not have aadhaar and did not want Aadhaar on biblical religious reasons

Reading from the "Book of Revelations".

written submissions here : drive.google.com/a/advocatepras…

Aadhaar he says is the number of the "Beast". (Many christians in Meghalaya also resisted aadhaar enrolment on this ground).

Sikri J asks for the Constitutional point. @sanjayuvacha responds saying he is substantiating his argument under Article 25.

says his Petitioner simply contends that he cannot in good faith enrol for Aadhaar and that there has to be an exception for conscientious objectors.

explains Article 25 contains two distinct rights..freedom of conscience and freedom of religion ...unfortunately we stress on only the latter aspect.

He then moves to his next argument on proportionality.

Skips all his other submissions but wants to read a passage from Vivian Bose J in Krishnan v State of Madras.

concludes by saying it is his earnest hope that the Court will decide in the favour of the freedom of citizens.

takes over. She represents an intervenor organisation representing transgender and sexual minority rights.

She says Aadhaar Act discriminates against sexual minorities. While biometrics has been argued at length, but not the demographic data and its implications

Aadhaar being made mandatory for almost everything but transgenders cannot get aadhaar because they do not have gender identity documents that Aadhaar requires.

Loose use of gender identity in Aadhaar is both discriminatory as well as a violation of privacy.
Cites Ople V Torres, Philippines Decision that struck down the administrative order providing for biometric identification system.

She concludes.

takes over. Wants to make 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 qua NRIs.

Napinnai, Advocate takes her one minute and says Aadhaar makes India's cyberspace vulnerable and threatens national security. She says the latter is also a fundamental right.

Digital ghettoisation, not merely profiling, is made possible, she says.

Petitioners arguments over.

A-G to begin his arguments tomorrow. Bench rises for the day.

(On a day where all counsel were asked to rush through, the Bench ends up rising 10 minutes earlier).