On 14.03.2018, Mr. K.V. Viswanathan, representing the petitioner, began his arguments. Today, he resumed his arguments by assailing Section 59 of the Aadhaar Act. Justice DY Chandrachud clarified that section 59 implies that whatever had been done between 2009 to 2016 would be deemed as having been done in 2016, after the passage of this Act. Thus, it did not give retrospective validity to the executive actions. Justice Chandrachud enquired about the consequence of Section 59 being declared unlawful. Mr Vishvanathan replied that all data collected between 2009 and 2016 would have to be destroyed. Even assuming Section 59 is valid, it had to be declared unconstitutional for violating fundamental rights under Articles 14 and 21.
Mr Viswanathan also argued that making Aadhaar compulsory for fundamental entitlements would attract the doctrine of ‘Unconstitutional Condition’. He referred to St.Xaviers v Gujarat and Olga Tellis v BMC to emphasise this point. Then, he addressed the recurring enquiry about the distrust citizens’ felt about sharing information with the government and not with private parties like Gmail and Facebook. There was an element of choice with respect to private players, while under State-backed Aadhaar where the data collection was wide and the storage aggregated. As this was the case the State would need to be watched more closely.
Mr.Viswanathan then submitted that mandatory Aadhaar regime was neither reasonable nor proportionate. He referred to Marper v UK (2008), the ECHR decision which held that storing DNA samples of arrested individuals who were later acquitted or had the charges against them dropped, violates the right to privacy under the European Convention on Human Rights. He also cited Common Cause v UOI where the CJI had observed that subjecting citizens to experiments like guinea pigs violated dignity. He compared it to the Aadhaar regime where citizens were being subjected to a faulty probabilistic experiment. He gave the analogy of compulsory DNA and semen collection of all males to identify sexual offenders, which would be disproportionate and not pass the test of constitutionality. Aadhaar had the same premise of compulsory submission of data by everyone for the surveillance of a few wrong-doers. He cited the 2013 ECHR case of MK v France where the storage of data for all citizens was struck down on grounds of disproportionality.
Next, Mr Viswanathan contended that Section 7 of the Aadhaar Act was unconstitutional. It violated Article 14 as it effectively excluded marginalised sections of the society. He cited the Economic Survey Report of 2016-17 which pegged authentication failure rate in Rajasthan at 37% and in Jharkhand at 49%. He emphasised that the validity of a legislation should not be judged by its object but its direct effect on fundamental rights.
Mr. Viswanathan also argued that the Right to Food is a fundamental right under Article 21 and mandatory authentication to get ration violated this fundamental right. Any infringement of Article 21 had to meet the ‘compelling state interest’ test. The government had failed to show that mandating Aadhaar for food had led to decreased losses and significant savings, thus failing this test. Additionally, as Aadhaar was linked to a wide array of things, the Aadhaar Act had become an ‘open-ended general purpose vehicle.’
Mr. Viswanathan will argue next on 15.03.2018.