Senior Counsel K V Vishwanathan, who had started his submissions on Tuesday, carried on from where he had left off, before the Constitution bench on Wednesday (March 14) in 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.

Vishwanathan referred to paragraph 113 of the Indira Sahwney case , with reference to the validation clause. He said that a similar issue had arisen in the Keshavanand Bharti case for article 31C.

Justice Chandrachud asked what could be done with the data collected by the government since 2009. The counsel said that it could be destroyed “forthwith, so that no further damage is done.”

He said that this was “de facto compulsion” that Aadhaar has been made mandatory. He talked about the right to choice, as discussed in the Common Cause judgment by the court.

He also referred to the Olga Tellis case in reference to the issue that the state cannot force anyone. He said that when it comes to privacy, the government acts in a different way as compared to the social security.

When asked about privacy issues related to private parties such as WhatsApp which take in personal data, he said that there should be enhanced scrutiny there as well. Referring to the Common Cause judgment Viswanathan said, quoting the CJI and Justice Khanwilkar (in that judgment), that “we are the guinea pigs for the UIDAI and are subject of experiments.”

He requested the bench to ask the UIDAI to submit a report pertaining to the errors in the biometric data. “As of now, we have 23 lakh errors on record,” he said.

“There is undue burden on the poor who do not even have bare minimal clothing for themselves. Now they have to go to the machine for authentication,” he said. “Presumption of collection of identity is criminal. Just because some of them will not defraud is no way to measure proportionality or disproportionality.

“The fact is that sexual assaults are going undetected. If any biometric information is collected from the criminal site or the body of the victim, the accused can be automatically caught. However, the entire population is being subject to criminal scrutiny,” he said.

He further referred to the Buck vs Bell case which was also referred to in the Puttuswamy case. He said that biometric data cannot be collected. “The issue of storage will fail for want of law as it has no legal backing.”

He also mentioned Mark Liander’s observations and future laws. Aadhaar will have its effect on the poor and marginal, he said. Aadhaar ensures leakages and public security simultaneously.

He contented that the failure rate of the Aaadhaar system in Jharkhand was 49 percent, while it was 39 percent in Bihar. Even where mobile signals are weak, they say that that on one click, they can check the all details, he said. Signal is weak in Rajasthan too. Fingerprint collection was poor and even the operators have low on knowledge.

He also talked about the incidents of fraud happening.

The court adjourned for the day.

—India Legal Bureau