Senior Counsel Meenakshi Arora carried on with her submissions before the Constitution bench on Tuesday (March 20) in the bunch of petitions challenging the constitutional validity of Aadhaar and its linkages. The bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan heard the submissions.

Issues discussed during the day centred around privacy issues, on whether the Centre should be allowed to have such unlimited powers of oversight and whether it is anyway necessary for the Centre to collect all this data. It was also pointed out that there have been incidents of attempted inter-country exchange of data of citizens, where one country has flatly refused, citing security issues.

When Arora stated what all her arguments would comprise, Justice Sikri commented that all the arguments pertaining to the Aadhaar matter are exactly like the 70s, 80s storyline; all the arguments sound the same with a slight difference.

Arora referred to the EU court judgment pertaining to meta data. She said wherever there is storage of data without any proper equipment to protect the same, it would lead to the infringement of an individual’s privacy. “The general warrants issued are bad,” she said, referring to Justice Rohinton Fali Nariman’s judgment on privacy.

“There is no way one can decipher if an individual is a criminal or not. However, what is happening under the Aadhaar scheme is that every citizen, whether a criminal or not, is a potential criminal,” she said.” We cannot afford something like this that Big Brother is continuously watching. This is not acceptable in a democracy.

“In such a large democracy, the government cannot take unfettered power, which would lead to arbitrary interference. In case you want any benefits, either you link your Aadhaar or alternative means, which is already mentioned in the proviso. The Aadhaar project lacks data security which thereby violates the constitutional principal of right to life, protection, security and privacy,” she added.

“The Act also does not talk about data security. Regulation 3 is upon UIDAI, making it supreme in deciding the policies with respect to Aadhaar. Aadhaar lacks judicial safeguard, and this requires judicial security. Also, the Aadhaar project has lacked sufficiency in case of fundamental rights.”

She mentioned the theory of Jeremy Bentham, wherein every individual in a prison is watched or has an apprehension of being watched, a panopticon (a special building as visualized and designed by Bentham) view is established. With the implementation of Aadhaar, we’re just creating a 360° panoptical view.

Another senior counsel started his submissions. He said new technology is unfolding every two years. He said that the Aadhaar concept can be converted into a card like credit card as the magnetic chip which stores data in credit or debit card. The data will always be with me. And the person doesn’t have to give any biometric data against this.

He supports this type of thing because the state cannot store the data of 1.2 billion people. He contended that “we are using biometric since ages as the birthmarks or mark of any injury is also biometric as it identifies me. So is there any another methodology?

“Why is biometric data considered so important, unlike statistical data? Page 82 talks about collection of data from any rudimentary data processing in existence at that time. The applicability and possibility of the data usage is decisive. Most of the phones also have biometric scans to unlock the phones, either via thumb impression or face recognition. There also, the data remains and there is a possibility of being abused,” he said. “What is the use of data if the use of data itself is faulty?

“Via contract between Canada and Europe wherein Europe had to share the PNR numbers of every individual, they declined stating that there is a possibility of the misuse of data,” he said.

After lunch the counsel continued: “The rule of law, if followed and following the puttuswamy judgment, the aadhaar act will neither qualify the principles laid down in the case nor will qualify article 14 and 21 of the constitution. The fingerprints are not at all reliable, be it in India or abroad. They tend to fail the recognition.

“Since contracts with minors is void, the minors cannot give consent, no power to operate bank accounts and according to the juvenile justice act, the underlying principle of waiver of rights, the child is arbitrarily being subjected to a regime wherein biometric datas will be given up for no time boundations. The rights of the child are being taken away. Personal data is an individual’s property, cannot be captured by the state.”

Senior Advocate Sanjay Hegde began his arguments and said: “Article 25 of the constitution: this article has two separate rights.”

Hegde mentioned the case of child who was denied admission because his father denied giving biometric details for aadhaar, saying their religion does not allow so. Counsel further mentioned the Sec 2(j) and  Sec 2(k) of aadhaar act which refers to biometric and demographic information.

He referred to a situation where a transgender have to give their gender identity to authority under demographic details. Gender identity will be subjected to medical certificate which violated one’s right to privacy which will subject transgender to undergo the process otherwise will not be able to prove his/her identity. This is clear violation of right to privacy of a person.

A junior counsel said: “It will be difficult to live in this country without aadhar. National security will be stake if datas are collected. The channel manual of this system will lead to cyber warfare. Life, liberty, security and existence of a person will be at threat.”

Attorney General A G Venugopal will start his arguments tomorrow.

The bench will hear the arguments tomorrow.

—India Legal Bureau