Aadhaar Hearing [Day 19] Petitioners Conclude Arguments, AG To Commence Arguments For Centre Tomorrow [Read Written Submissions]

On Day 19 of the Aadhaar final hearing, senior counsel Meenakshi Arora resumed her submissions on behalf of the petitioners on the impact of surveillance, the parameters of strict necessity and purpose limitation, and the test of proportionality.She referred to the judgment of the Court of Justice of the European Union (CJEU) in Tele2, wherein the access to data collected was to be given only to law enforcement agencies for the limited purpose of fighting serious crime, and the law in question prescribed the retention of data only for a limited period of 6 months unless otherwise provided, after which it was required to be erased irretrievably, but the court held that even for the purpose of prevention of serious organized crimes like terrorism, the law failed to meet the test of proportionality.“Under the Aadhaar project, the data shall be deleted after 7 years,” remarked Arora.She submitted that the UN General Assembly in its Resolution dated 16 November 2016 on the Right to Privacy in the Digital Age, had noted, “...while metadata can provide benefits, certain types of metadata, when aggregated, can reveal personal information and can give an insight into an individual’s behaviour, social relationships, private preferences and identity.”Earlier, in its Resolution dated 18 December 2014, it recorded its deep concern in its regard in the following words: “Deeply concerned at the negative impact that surveillance and/or ... as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights.”Further, as per the 2014 Report of the Office of the United Nations High Commissioner for Human Rights on the Right To Privacy in the Digital Age, “...Where there is a legitimate aim and appropriate safeguards are in place, a State might be allowed to engage in quite intrusive surveillance; however, the onus is on the Government to demonstrate that interference is both necessary and proportionate to the specific risk being addressed. Mass or “bulk” surveillance programmes may thus be deemed to be arbitrary, even if they serve a legitimate aim and have been adopted on the basis of an accessible legal regime. In other words, it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate.”She relied on the 2016 judgment of the European Court of Human Rights (ECHR) in Szabo & Vissy v. Hungary in so far as it was observed therein that “...However, in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference...”She also referred to the 2004 judgment of the Supreme Court in District Collector v. Canara Bank wherein it was observed, “ ... Unbridled power available to be exercised by any person whom the Collector may think proper to authorize without laying down any guidelines as to the persons who may be authorized and without recording the availability of grounds which would give rise to the belief, on the existence whereof only, the power may be exercised deprives the provision of the quality of reasonableness. Possessing a document not duly stamped is not by itself any offence. Under the garb of the power conferred by Section 73, the person authorized may go on rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercise of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out. Any number of documents may be inspected, may be seized and may be removed and at the end, the whole exercise may turn out to be an exercise in futility. The exercise may prove to be absolutely disproportionate with the purpose sought to be achieved and, therefore, a reasonable nexus between stringency of the provision and the purpose sought to be achieved ceases to exist.”She indicated the impact of surveillance as mentioned by Fali S Nariman in his book “Before Memory Fades”.She also referred to renowned jurist Jeremy Bentham’s idea of a security institution, known as the Panopticon. The Panopticon is an architectural creation, within which constant and round-the-clock watch can be kept on the inmates, workers or patients. The characteristic feature of this arrangement is that there is a complete asymmetry ...

Aadhaar Hearing [Day 19] Petitioners Conclude Arguments, AG To Commence Arguments For Centre Tomorrow [Read Written Submissions]

Mehal Jain

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