Thread by @gautambhatia88

Aadhaar Day 25, Session 2. AG to continue.

AG is reading an American judgment that deals with the issue of the taking of fingerprints in the context of verifying a prior criminal record.

The fingerprinting ordinance in that case was upheld because it was adjudged to be a minor inconvenience, minimally intrusive, and not a "fundamental decision", such as the choice of contraception.

Chandrachud J points out that the issue is not fingerprinting per se, but narrow tailoring. He recalls that petitioners have taken examples of Identification of Prisoners Act and Bombay Habitual Offenders Act, which are examples of narrow tailoring.

Chandrachud J says that the petitioners' objection is not to fingerprinting per se, but to the pervasive nature of Aadhaar.

AG says that the purpose is prevention of fraud by having a universal ID. Therefore it satisfied a vital state interest.

AG says that the purposes are specific - preventing subsidy loss, preventing income tax fraud, and preventing terrorism.

Chandrachud J asks if S 7 is sustained, the question still remains whether Aadhaar can be expanded to include use by private parties. AG says he will address it later.

AG now reads out a case from New York, also dealing with fingerprinting, and said that fingerprinting does not carry any stigma or presumption of criminality.

This case said that fingerprints can be used for non-criminal proposes, as a valuable and reliable means of identification. There is no stigma and no unwarranted invasion of liberty.

AG repeats the point that the inconvenience is minor, and the violation of dignity is non-existent.

The case also said that even if there are alternative means, that choice is to be made by the legislature, and not by the courts.

And if the means adopted are reasonable, the legislative choice cannot be called into question.

AG says that the allegation that this could be used for surveillance is baseless, because no government in the last seventy years has engaged in surveillance, apart from the Emergency.

AG says that the Court can't go into legislative motive, or go behind the stated objective of the Act.

AG is now reading a US SC judgment - Whalen v Roe.

Whalen was a case involving retention and storage of data about pharmaceutical drugs. You can read about it here: en.m.wikipedia.org/wiki/Whalen_v.…

The US SC held that there was no constitutional violation, and the possibility of misuse was not a ground to invalidate the patient identification mechanism.

The Court in Whalen did not decide what would happen if there was an unauthorised disclosure. AG says that this shows that the mere possibility that a large quantity of data may be misused is no ground.

Sikri J says that the position in European law is diametrically opposite.

AG says that American SC is 250 years old and has often been followed by the Indian courts.

Some lighthearted discussion between Sikri J and AG on whether foreign judgments should be looked at all.

Darn, phone dying.

AG is still reading paragraphs from Whalen v Roe, that talk about balancing interests.

AG cites an American judgment about social security numbers, which says that collection of personal data like sexual orientation etc can cause stigma, but the kind of data collected by the SSN does not, and serves a legitimate government interest.

Sorry, it's the same judgment - Whalen v Roe

OK, borrowed @n_saivinod phone. Chandrachud J has pointed out the distinction between the American Social Security number and Aadhaar. He says that SSN is more like a PAN card. SSN does not involve biometrics and there's no authentication requirement.

AG responds that the American SSN collects vastly more information than Aadhaar.

Chandrachud J says that his recollection from his student days is that the SSN only has your name and a number. AG confers with his junior and says that this is true. But in any case, the Aadhaar Act says that personal data cannot be disclosed.

AG is now reading out a New York Supreme Court judgment on a fingerprint identification program (Buchanan v Wing) which you can read here: leagle.com/decision/19978…

AG now reads an American judgment called People v Stuller, which you can read here: caselaw.findlaw.com/ca-court-of-ap…

This involved fingerprinting in a rape case CJI says that this case is not relevant because nobody is saying that you can't take fingerprints in a criminal investigation.

AG now discusses the case of Brown v Brannon, which was about the 'massage of private parts for hire.' law.justia.com/cases/federal/…

AG is reading out an American SC judgment that says the government can impose non-discriminatory conditions for the receipt of benefits.

AG reads out the part of the judgment that says that a wide latitude should be given to the State when implementing welfare programs.

The case also dealt with the use of Social Security numbers to eliminate fraud and duplicates.

Bench rises. To continue tomorrow.

Cheers.