Asheeta RegidiMay 11, 2018 10:14:32 IST
On Day 19 of Aadhaar hearings, the petitioners concluded their arguments. The arguments included the chilling effect caused by the large-scale collection of metadata and the lack of proportionality in the Aadhaar Act. Next, the effect on various vulnerable sections of society was raised. This included the rights of the child, arguing that the right to education should not be made subject to Aadhaar.
Further, objections were raised on the issues created for transgender persons and NRIs. Objections were also raised by ‘conscientious objectors’, based on the belief of certain Christians that Aadhaar was similar to the prophetic ‘beast’ in the Book of Revelations.
Retention of metadata enables precise profiling
Senior counsel Meenakshi Arora continued her arguments on the issue of large-scale collection and aggregation of data under the Aadhaar project. On the retention of metadata, the European case of Tele2 Sverige v. Post-och telestyrelsen was cited, where the European Court of Justice held that a law requiring the retention of metadata was violative of the fundamental rights, including the right to privacy and the right to freedom of expression. The fact that the collected data, taken as a whole, could enable very precise profiles to be drawn on the private lives of the individuals concerned, was an issue in this case.
The menace of surveillance
The European case of Szabo v. Hungary, was also cited, which in addition to the profiling, ruled that the ‘menace’ of surveillance struck at the freedom of communication. This constituted an ‘interference by a public authority’ with the people’s rights to respect for private life and correspondence.
The UN General Assembly’s resolution on the Right to Privacy in the Digital Age had also expressed deep concerns with the negative impact of the collection of data on a mass scale can have on the exercise of human rights.
Future generations need to be protected
Based on these, the chilling effect caused by the large-scale collection of data and metadata on fundamental rights was argued on. It was further argued that the aggregation of data, as admitted to by the State and the UIDAI, was sufficient to indicate the religion, class, social status, income and education level, medical history and reproductive preferences of an individual. It was argued that in view of history, one had to be careful of the State’s claim that abuse of this data could not happen in a state where there is rule of law. The protection being sought, it was argued, was not just for now, but for future generations as well.
Issues with the Aadhaar Act
Further issues were raised, such as the lack of proportionality and purpose, limitation with the large-scale collection and retention of data under the Aadhaar Project. Provisions on the destruction of records, it was argued, is the least that is required to retain proportionality.
Lastly, Section 7 of the Aadhaar Act was also asked to be read down, to interpret ‘if an Aadhaar number is not assigned’ to mean that those without an Aadhaar could provide alternate forms of identification. The Bench was not in agreement with this interpretation.
Least intrusive method of authentication not been used
Next, senior counsel Sajan Poovayya commenced his arguments, arguing that a legislature that passes the test of proportionality in the brick and mortar world may not do so in the world of information technology. Even if there is a compelling interest to identify people accurately, the least intrusive method must be used to achieve this. Aadhaar, it was argued, failed to use the least intrusive method.
Citing the example of credit card chips, it was argued that fingerprints / other biometrics could be stored on a chip on the card itself, instead of a centralised database. This allows authentication to take place from the person’s fingerprint to that on the chip. There was, thus, a less intrusive alternative available to achieve the same purpose. In fact, such matching would be more accurate, since it is not being matched with a database of 1.3 billion people. The open-ended definition of biometric data was further pointed to, arguing that the government could easily add DNA to the list.
The irrationality of the Aadhaar project
Next, senior counsel PV Surendranath commenced his arguments, arguing that the Aadhaar Act is arbitrary and violative of Article 14, the right to equality. The irrationality of the Aadhaar project was argued on, on the basis of the unreliability of biometrics and the huge de-duplication ration of 1 in 121, which is huge given India’s population. This was further aggravated by the lack of an opt-out facility and the total absence of control of the citizens on their data.
A child cannot consent or enter into contracts
Next, senior counsel CU Singh presented an argument on the violation of child right via the Aadhaar project. India’s accession to the Convention on the Rights of the Child, and the express protection granted to a child’s privacy under the Indian Constitution as well as laws like the Protection of Children from Sexual Offences Act was pointed to. A child, under Indian law, cannot consent or enter into contracts, which, it was argued, puts being mandatorily entered into the Aadhaar regime on a different footing. A child’s right to education, further, could not be made subject to Aadhaar.
Religious objections to Aadhaar as the ‘beast’
Next, senior counsel Sanjay Hegde commenced his arguments on behalf of a client raising objections to Aadhaar on the basis of religious theology. The client and his family had refused to acquire an Aadhaar number, and his son had been denied admission in Class XII due to the lack of Aadhaar. The client and his family were Christians, and believed that Aadhaar was the mark and number of the ‘beast’, a prophetic warning in the Bible of unchristian practices, in the Book of Revelation.
The warning involved a beast which exercised authority over the people and forced all people to worship it, as well as receive a mark on their hands or foreheads in order to continue with their lives (as discussed in the written submissions).
The client was under the belief that the Aadhaar, being made mandatory through various notifications, made it impossible for people to continue with their lives. Further, the taking of biometric information in the form of fingerprints and retina scans, information obtained by placing a scanner on heads, was similar to the mark in the prophecy.
Aadhaar thus, it was argued, violated the right to freedom of religion as well as the freedom of conscience. He argued that the clients could not, in good faith, enrol in Aadhaar, and thus an exception was required for conscientious objectors.
Gender requirement affects transgender persons
Next, counsel Jayna Kothari commenced her arguments on behalf of transgender persons, arguing that for them, demographic information becomes a major issue. For transgender persons, it was argued, acquiring the identity documents required to get Aadhaar was not possible. Non-recognition of such people, thus leads to a denial of benefits. Though caste and religion had been left out, gender had not, which was a violation of equality and privacy.
NRIs unable to file taxes or acquire SIMs
Next, counsel Prasanth Suganthan made a brief point on NRIs, arguing that the way Aadhaar had been implemented, authorities could not be sensitive to the fact that NRIs are not eligible for Aadhaar. For instance, to get a phone connection, another person’s Aadhaar number had to be used. Filing taxes is also an issue.
Impact on cyberspace
Lastly, counsel NS Nappinai made a brief point on Aadhaar making cyberspace vulnerable. With this, the petitioners concluded their arguments in the case.
The respondents, the State will commence their arguments on 21 March.
Read our past coverage of the on-going Aadhaar Supreme court hearing:
The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.