The hearing for Day 11 began with Gopal Subramanium continuing on behalf of petitioners. He started by stating that the Aadhaar Act is unconstitutional. Referring to the Puttaswamy judegment read with the decisions in NALSA v. Union of India and Subramanium Swamy v. Union of India, he stated that these decisions make it clear that Article 21 includes dignity within its scope.
He submitted that between individual rights and the concerns of the State, former will have prominence. He stated that Aadhaar, to be valid, should satisfy the test of substantive and procedural reasonableness. He added that there can never be a waiver of fundamental rights. When a legitimacy of a statute is discussed, he said, it means that the aim of the statute as well as the means to achieve it- both are equally discernible. He argued that the Act suffered from excessive delegation and hence was violative of Article 14 of the Constitution. Pointing towards section 57, he stated that actions which violate fundamental rights cannot be retrospectively validated by means of a statute. Terming the algorithmic behaviour to be irrational and beyond UIDAI’s control, he said that the statute relies on biometrics which itself is flawed.
Answering a query of CJI on whether a virtual person reduces real personhood, he stated that existential identity cannot be judgmentalised by the State and negation of such an identity by an algorithm without having any human accountability can have far-reaching consequences.
He then referred to the judgment in Binoy Viswam v. Union of India and said that while the State claimed that Aadhaar is meant for social good and for effective delivery of services by State as well as by the private entities, it also admitted that there were serious flaws in collection and retention of information.
Mr. Subramanium stressed upon the fact that the Aadhaar Act cannot survive in the absence of a data protection law. A data protection law, he said, is based on the notion of fairness and information sharing principles. However, the present Act did not fulfil any of the said criteria.
On the point of mobilization raised by Justice Chandrachud, Mr. Subramanium stated that the present Act takes away the right of the individuals to freely mobilize and hence, constitutes an infringement. He argued that the ability to negate the personhood causes not just civil death but also constitutional death which is impossible to conceive. He stated that rights and entitlements of an individual cannot be left to probabilities and that the Constitution guarantees against such vicissitudes. He said that the facilitation of those entitlements by the State is the most important aspect.
He said that the entire authentication system was based on algorithms which have a very unpredictable behaviour. He questioned if the important entitlements like pensions, scholarships can be made dependent on the behaviour of an algorithm and whether the impunged Act facilitated those entitlements.
Terming the project architecturally unconstitutional, he stated that all the factors must be looked cumulatively.
Moving on to the Puttaswamy judgement, he stated that a law must be compatible with the golden thread of dignity, liberty and privacy running through Article 14, 19 and 21. He further argued that one cannot have discreet silos of human nature be aggregated centrally.
He then pointed out the parts of the Puttaswamy judgement which held privacy to be a natural and inherent right. He stated that privacy is naturally associated with the right to control ones’ personality. He explained that existential identity refers to the identity for survival and can become transactional. However, even in such situations it is protected as an inalienable right under the Constitution.
Elaborating on his arguments, he said that exclusion is equivalent to discrimination and thus, the Act which discriminates is unjustifiable in nature. He pointed out that natural rights are not conferred by the State but exist by virtue of being a human. He further reads extracts from the Puttaswamy judgement on the inalienable nature of the rights.
Next, he read out the extracts of Puttaswamy judgement reaffirming Justice Lahoti’s decision in the case of District Registrar and Collector, Hyderabad n. Canara Bank on informational privacy. He stated that identification of an individual through a number assigned to him is completely destructive of dignity. He submitted that right to privacy is an element of human dignity and that constitutional rights cannot be waived.
Finally, he submitted that in the present case, consent of an individual is irrelevant as algorithms have a very unpredictable nature.
The hearing will continue on Wednesday, 21st February, 2018