The hearing on Day 2 began with Senior Advocate Shyam Divan resuming his arguments for the petitioners. He clarified on the deterministic and probabilistic systems of identification. He stated that the devices used for capturing the fingerprints at the time of authentication were of lower quality. On this note, Chandrachud J. pointed out that the fingerprints might even be absolutely unreadable for people involved in manual labour or with age.
Mr. Divan stated that there were 3 aspects which needed consideration: integrity of the process, integrity of the information being collected, and pervasive invasion of fundamental rights. He highlighted the issue relating to privacy, personal autonomy and compelled speech.
He then read out the contents of the initial version of the enrolment form and pointed out the following issues:
There was nothing in the form which suggested that the enrolment was voluntary.
There was no mention of biometrics being collected on the form.
There was no declaration or verification.
No indication on the form as to how the information had been gathered or filled.
No signature of the enroller or enrollee.
No manner of counselling- which raised questions on the nature of informed consent.
He stated that the programme by design is a general purpose scheme, and hence it was now being mandated for everything.
Answering a query of Chandrachud J. on whether there was an ‘opt-out’ on consent to share data, Mr. Divan referred to an affidavit which stated that the the software was so programmed that a person could not opt out.
He argued as to how could the state compel an individual to part with her personal information to a private entity. He reiterated that the whole scheme was by design defective.
At this point, Chandrachud J. asked whether it would make any difference if the enrolling agency is an agency of the state. Mr. Divan responded that there was no question of delegating a core sovereign function to private persons. He pointed out the absurdity of the State compelling citizens to hand over all personal sensitive information to private entities. He stated that everything about the process- from beginning to end was unconstitutional.
Reading out the pre-statute version of the enrolment form, Mr Divan said that no counselling was being done even at that stage. Further, he stated that, UIDAI had no contractual or any other relationship with enrolment entities that collected information.
Chandrachud J. questioned how was it different from people sharing their personal information with private entities for insurance, credit card purposes, etc. Mr. Divan replied that this case would be different as the issue here was that the individual was being asked to part with her information to a private entity she did not know and had no contractual relation with.
Mr. Divan then referred to the ‘KYR+’ (Know Your Resident Plus) form of the State of Kerela. He stated that the form contained additional information like marital status, and that information in silos was being aggregated, which can then be used for tracking and profiling people.
He then listed out several private enrollers. Questioning the integrity of the system, he referred to a Rajya Sabha statement which stated that around 34,000 operators had been cancelled and blacklisted since December 2016. Moreover, he mentioned that as per a media report, around 49,000 enrollers had been blacklisted in 2017.
Mr. Divan then focused on a memorandum of understanding (MoU) dated 28th June, 2010 between the Govt. Of NCT and UIDAI for implementation of Aadhaar programme. He stated that this MoU was the first time that the reference was made to the collection of biometric data for identification.
At this point, Chandrachud J. questioned whether registrars could only be government agencies. Mr. Divan answered that registrars could be government agencies as well as private bodies. He then referred to Article 299 of the Constitution and stated that there was absolutely no legal framework to support UIDAI. He said that MoU did not qualify as contracts as per Article 299.
He pointed towards the palpable lack of integrity in the project which left the people in a vulnerable position.
On being pointed out by Khanwilkar J. that all the above actions had been diluted by the Aadhaar Act 2016, Mr. Divan said that the statute cannot retrospectively validate the violation of fundamental rights.
The arguments then shifted to the Supreme Court judgment on Fundamental Right to Privacy in the case of K S Puttaswamy v. Union of India.
He read out the parts of the judgment of Chandrachud J. explaining the scope of ‘right to personal liberty’. He mentioned how this judgment made the fundamental rights preamble-centric.
He further read out the paragraphs of the judgment on right to informational self-determination and informational privacy. Moreover, he drew the attention of the Bench towards the observation in the judgment where it has been emphasised that privacy is not a privilege of the elite.
Finally, he pointed out to the paragraphs which stressed on the importance of judicial review in order to protect individual rights.
The hearing will continue on Tuesday, 23rd January, 2018.