The 25th Day of arguments began with the Attorney General of India Mr K K Venugopal reading out excerpts from the US Court of Appeals judgement in Thom v. New York Stock Exchange. This case deals with DNA storage of arrested persons. Here, Chief Justice Dipak Misra pointed out that this case was not applicable here, as it is deals with offenders. Mr Venugopal responded that he wanted to read the portion of the judgement that deals with the retention of DNA.
Justice Chandrachud clarified that the court is not worried about misuse but worried about the use of power under Section 2(g) of the Aadhaar Act. He said that leaving it to an administrative authority to define biometrics may not meet the proportionality test. Mr Venugopal stated that he will address this issue at a later point. He resumed his submissions on the point of collection of fingerprints. He read from a Fordham Law Journal article to argue that automated finger imaging does not violate privacy. He emphasized that finger imaging technology is 99.9% accurate.
When Mr Venugopal argued that Aadhaar would play a crucial role in catching and preventing bank frauds. Justice Chandrachud said that the Aadhaar will not prevent an individual from operating layers of commercial transactions or prevent bank frauds. At the most, it will help in providing subsidies and benefits under Section 7.Justice Chandrachud stated that the presence of a legitimate state interest does not ensure proportionality. Mr Venugopal responded that the Aadhaar will help overcome income disparity and poverty.
Justice Sikri said that the State cannot assume that the entire population consists of defaulters and violators. He questioned the logic behind linking SIM cards to Aadhaar. Mr Venugopal responded that this curbs terrorism. Justice Chandrachud wondered if terrorists applied for SIM cards. He objected to the State asking the entire population to link their mobile phones with Aadhaar. Mr Venugopal responded that the State is asking for minimal information via the Aadhaar. He argued that most information was already available in public domain.
Post lunch, Mr Venugopal resumed his arguments by stating that Aadhaar is required only for receiving benefits under Section 7, identifying bank accounts, income tax returns, and mobile numbers. Apart from these, it is a purely voluntary scheme.
Mr Venugopal argued the right to privacy and the other rights are competing, and the court must balance the two competing rights. He argued that the right to food, employment, medical care and other services take precedence over the right to privacy. He questioned how the right to privacy could be invoked to deprive other sections of the society. He cited X v. Hospital Z where the right to privacy was balanced against the right to information. A man suffering from HIV had the right to non-disclosure, but the court had held that his fiancée’s right to know of his disease took precedence.
Justice Sikri pointed out that this was a case of balancing the rights of two individuals, while in the case of Aadhaar, the state is giving a person food in exchange for their privacy. Mr Venugopal reiterated that the invasion of privacy is so minimal in Aadhaar, that it could not even be considered an invasion. The bare minimum data is taken from an individual. He reiterated his argument that the basic right to life under article 21 could not be challenged on the ground that we have a right to privacy. Justice Bhushan pointed out that ‘minimal invasion’ is very subjective. What may be minimal for ‘A’ might not be minimal for ‘B’. Mr Venugopal asked the court to look at the information taken from objective standards, in the larger interest of the country.
At this point, Justice Chandrachud said that they were concerned about three issues: informed consent, the purpose of Aadhaar, and security. Additionally, the Court will have to look at the meaning of proportionality, especially as it had not been defined in the Right to Privacy judgement. Mr Venugopal argued that the Aadhaar was voluntary when it was rolled out, therefore there is no violation of any right. There is implied informed consent. Justice Sikri asked if it is permissible to say that a person will be given food, shelter, etc. but will remain a slave. Justice Chandrachud added that Mr Venugopal’s arguments do not take into account the infringement of rights before the Aadhaar Act was passed. He also enquired about the collection of data by state governments, to which Mr Venugopal responded that state governments act as the agents of the central government.
At this point, Mr Rakesh Dwivedi interjected to say that a concept study was conducted in rural areas before the decision was taken to implement the Aadhaar scheme. Additionally, the IT Act has empowered the use of Aadhaar for the purpose of e-commerce. Lastly, Justice Khanwilkar asked if the option of locking biometrics is available for those who do not wish to use Aadhaar. Mr Shyam Divan interjected to respond that there is no way to opt out of the Aadhaar system. The next hearing is scheduled for 10.04.2018.