Thread by @gautambhatia88

Aadhaar Day 32.

Rakesh Dwivedi continuing the argument for the State. The State will finish this week.

RD is talking about reasonable expectations of privacy.

RD reads a judgment of the Constitutional Court of South Africa to argue that privacy is strongest in the inner sanctum of the mind, but shrinks as you move outside into the world.

RD says that it has to be considered whether private life is protected outside your home, because people frequently give up their privacy in these conditions. RD says that the judgments of the European Court don't take into account the issue of reasonable expectation of privacy.

RD says that the US and UK Supreme Court treat reasonable expectation of privacy as very significant, and that the Indian position is closer to this.

RD reads out an article from the Harvard Law Review saying that privacy is in opposition to the pursuit of knowledge.

Sorry, the network in Court 1 is horrendous today.

RD has argued that Indian needs innovation and development of knowledge, and also that the right to privacy is subject to the rights KS others to lead ordinary lives.

RD says that the only question is whether the restriction on the right to privacy is proportionate to the government purpose. He says that nothing else can be taken into account. He says that the Petitioners have applied the wrong standard in arguing that the restriction on +

+ rights should be least intrusive.

RD says that there is a vital state interest in ensuring that welfare benefits are not dissipated, and data mining to ensure this is permitted.

(The last few extracts are passages from Justice Chandrachud's plurality opinion in the privacy judgment)

RD says that in the public sphere, the right to privacy is diluted.

He says that the entire Aadhaar activity is in the relational and public sphere. He says that demographic information and facial photograph don't have any privacy concerns. There is no reasonable expectation +

+ of privacy.

He says that at the requesting entity point, it's all dispersed and decentralised, and so it doesn't deserve the level of protection that the CIDR is given.

Chandrachud J says that the point seems to be that core biometric information has higher privacy concerns

Chandrachud J says that that does not mean that there is no privacy concern elsewhere. RD says that he agrees, and that he's just saying that the reasonable expectation of privacy varies according to context.

RD says that petitioners have cited no judgments involving identity cards. He says that 120 countries use biometric passports and nineteen European countries use biometric ID cards.

RD says that the CJEU or the ECHR have never expressed any concerns with biometric ID cards.

RD says that we don't need to go to Europe for proportionality, because India developed the test in 1952 in V. G. Row's case.

RD says that the Indian Supreme Court has never accepted the requirement that a restriction on fundamental rights be least intrusive.

RD is now arguing about the perils of the sue process standard.

RD says that in the privacy judgment, it has been said that if you willingly put up your personal information on Facebook, then you may not have a right to privacy in that information.

RD cites some American judgments. Ohio v Akron, which was about disclosure requirements to authorities in abortion cases.

You can read the case here: oyez.org/cases/1989/88-…

RD cites the case of Doe v Reed, which was about disclosure of signatures on a referendum campaign.

en.m.wikipedia.org/wiki/Doe_v._Re…

RD cites the UK SC judgment in Wood v Commissioner of Police, which said that the taking of photographs in itself does not violate privacy.

RD says that the American judgments cited by the AG on fingerprints have all been approves by the US SC.

RD says that the Petitioners have relied heavily on the ECHR's judgment in Marper, but actually, Marper supports the case of the State.

Marper: en.m.wikipedia.org/wiki/S_and_Mar…

RD says that Marper held that that the question of whether retention of data raises privacy concerns depends on the context.

RD says that Marper has drawn a distinction between fingerprints and DNA profiling, and examined them separately.

RD says that Marper was decided on the context of crimes, where the collection and retention of personal data actually casts stigma. That is not the case with Aadhaar.

RD says that Marper held that DNA was problematic because it had "non-neutral" information. That is not the case with Aadhaar.

RD says that the ECHR in Marper focused on a lack of consent, and fingerprints being "non-neutral" in the context of identification for crime purposes. Those conditions don't apply in the case of Aadhaar.

RD says that Marper held that the relevant test is that of "appropriate safeguards", not 100% or near to 100%.

He repeats that Marper stressed that it was only being decided in its specific context.

RD says that Marper has been distinguished by the UK SC in [2015] UK SC, Gaughran v Chief Constable, where there was no collection of cellular samples, and acquitted people were not sampled. He says that this shows how it is always a contextual enquiry.

You can read the judgment here:
supremecourt.uk/cases/uksc-201…

RD says that the Petitioners cases are all in the crime context or about censuses, which have been upheld by this Court.

Bench rises for lunch.

To resume at 2 30.

Cheers.