Day 17 of the final hearing began with Senior Advocate K.V. Viswanathan continuing his submissions on the illegality of the validation Section 59 provides to the pre-legislation actions. He read the Delhi Cloth Mills case which held how a law can deem facts but cannot deem legal consequences. He further referred to Indira Sahwney decision wherein court held that legislative declaration of legislative facts were open to judicial examination. He submitted that the absence of informed consent is a compliance issue and Section 59 cannot declare compliance when it was not even there in the first place. On being asked by Justice Chandrachud about the consequences of Section 59 being declared unlawful, Mr. Viswanathan responded that it should result in the destruction of all the data collected between 2009 and 2016.
He then moved on to his next submission and stated that the Aadhaar Act and the surrounding infrastructure has made possession of Aadhaar de-facto mandatory. He stated that bartering away the fundamental rights in return for aid is an unconstitutional condition and an unreasonable classification, hence violative of Article 14 of the Constitution. He further referred to the decision in Ahmedabad St. Xavier's College Society v State of Gujarat and Olga Tellis v. BMC explaining this point further.
Next, he moved on to his submissions on choice and bodily privacy and pointed out the core issue in this case: whether the individual's decision about how to use her body can be taken over by the State, who decides for her instead.
He then moved on to distinguishing between compulsion by State and non-State actors. Mr. Viswanathan submitted that the State does not have the power to compel citizens to do particular acts except in certain defined circumstances. He then went on to detail the limits of compulsion by law on individual freedoms.
With respect to Section 7, Mr. Viswanathan submitted that subjecting vast majority of people to a probabilistic method of authentication is of grave concern and a violation of dignity.
He, then, moved on to his next submission and stated that the presumption of criminality inherent in the collection of identity information is disproportionate and arbitrary. Citing the problem of sexual assaults going undetected, Mr. Viswanathan gave a hypothetical example making it mandatory for all males to submit their DNA samples in order to identify perpetrators of sexual assault and asked the bench if such a law would pass the muster of the Constitution.
Next, Mr. Viswanathan submitted that the biometric data of individuals is collected by enrolment agencies which are private entities. Commenting on the absence of safeguards, he said that there is no judicial or independent oversight during these enrolments.
He further submitted that on the aspect of storage, the Aadhaar Act is violative of privacy. He said that the centralised storage of data in CIDR is disproportionate. Moreover, he contended that the absence of a right to access one’s own biometric data is violative of Article 19 and 21 of the Constitution and represents the failure on the State’s part to fulfil its obligation of providing unimpeded access to the individual’s own data.
He then went on to his next point and stated that the Aadhaar Act lacked purpose limitation. He declared the Act to be an ‘open ended general purpose vehicle’ and read the decision in S & Marper in this context.
Moving on, Mr. Viswanathan submitted that the Aadhaar Act legitimised mass surveillance by State which is antithetical to the principles of democracy. He argued that the Act did not define ‘national security’ and did not require any ex-ante or ex-post independent oversight.
Next, he submitted that Section 7 of the Act had resulted in the exclusion of most marginalised sections of the society and hence in unconstitutional and violative of Article 14. Citing figures from Economic Survey of India, he pointed out the rate of authentication failures in Rajasthan (37%) and Jharkhand (49%) and submitted that the validity of the Act should be judged not by its object but by its direct effect on the fundamental rights of the individuals. He said that mandatory authentication at point of use violated Article 21 and violated the individual’s right to choose how to identify themselves.
Mr. Viswanathan argued that the Government had failed to discharge its burden of proof to justify infringement of fundamental rights under Article 21. Further, he stressed that the Government had also failed to show how Aadhaar has resulted in stopping the losses and resulted in significant savings. He said that wherever the individuals had not given or linked Aadhaar, it was taken as a case of savings or plugging of leakages. He further pointed out the incorrect assumptions in the State’s claims of savings and said that it has been safely assumed by the State that leakages are caused only due to identity fraud.
The hearing will continue on Thursday, 15th March, 2018.