Aadhaar [Day-2 Session-2] Violation Of Fundamental Rights Cannot Be Validated Retrospectively: Shyam Divan

Justice A. M. Khanwilkar asked Shyam Divan “Are the many notifications issued prior to the Act of 2016, which mandate Aadhaar, not validated by virtue of section 59 of the Act?” “In my opinion, a violation of Fundamental Rights cannot be validated retrospectively”, replied Mr. Diwan.As the five-judge Constitution Bench reconvened post lunch hour on Thursday, Senior Counsel Shyam Diwan discussed at great length the 2017 Judgment in (Retd.) Justice K. S. Puttaswamy case, wherein a nine-judge bench of the Supreme Court had upheld the right to privacy as a Fundamental Right.The Senior Counsel quoted the paragraph of the judgment discussing the article dating back to December, 1890, published in the Harvard Law Review, in which Samuel D. Warren and Louis Brandeis adverted to the evolution of the right to life to mean “the right to enjoy life – the right to be let alone”- “The ringing observations of Warren and Brandeis on the impact of technology have continued relevance today in a globalised world dominated by the internet and information technology. As societies have evolved, so have the connotations and ambit of privacy”.Aadhaar- [Day 2- Session-1] We Are Being Compelled By State To Part with Our Sensitive Data To Private Bodies: Shyam DivanMr. Diwan recited the comments in the Justice K. S. Puttaswamy judgment regarding the right to privacy as a “natural and inalienable right”, and in so far as it discusses the observations of the Supreme Court in the 1975 case of Gobind v. State of Madhya Pradesh- “There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior”.The passage of the Justice K. S. Puttaswamy judgment citing precedents, which read the right to privacy as being implicit in Articles 19(1) and 21, was also quoted- “These would include telephone tapping (PUCL), prior restraints on publication of material on a death row convict (Rajagopal), inspection and search of confidential documents involving the banker - customer relationship (Canara Bank), disclosure of HIV status (Mr X v Hospital Z), food preferences and animal slaughter (Hinsa Virodhak Sangh), medical termination of pregnancy (Suchita Srivastava), scientific tests in criminal investigation (Selvi), disclosure of bank accounts held overseas (Ram Jethmalani) and the right of transgenders (NALSA).Aadhaar Hearing: Day-1 (Summary) ‘Eminent Domain Does Not Extend To Human Body’, Argues Shyam DivanMr. Diwan referred to the paragraphs of the K. S. Puttaswamy judgement dealing with the Preamble to the Constitution and assurance to the “dignity of the individual”, and in so far it cites the 2006 judgment in M. Nagaraj wherein dignity was observed to be inseparable from human existence.“In this digitalised world, the Union government has to be an ally of the citizen and ensure that his privacy interests are protected against private or overseas concerns”, remarked Mr. Diwan.Further, the Senior Counsel quoted the 9 judge bench judgment, in so far as it discusses the 2012 American case of United States v Jones, where it was held unanimously that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a Government’s physical intrusion onto the defendant's car for the purpose of obtaining information and therefore a “search”.At this juncture, the Chief Justice Dipak Misra directs the Senior Counsel to the paragraphs of the Justice Puttaswamy wherein it was observed that “The age of information has resulted in complex issues for informational privacy...Information is nonrivalrous in the sense that there can be simultaneous users of the good...Secondly, invasions of data privacy are difficult to detect because they can be invisible...Thirdly, information is recombinant in the sense that data output can be used as an input to generate more data output”, and that “Data Mining processes together with knowledge discovery can be combined to create facts about individuals. Metadata and the internet of things have the ability to redefine human existence in ways which are yet fully to be perceived...This poses serious issues for the Court. In an age of rapidly evolving technology it is impossible for a judge to conceive of all the possible uses of information or its consequences”.Aadhaar Is A Switch Which Can Cause Civil Death Of An Individual: Senior Advocate Shyam Divan Submits Before 5-Judge Constitution Bench [Read Opening Statement]Mr. Diwan had, on Wednesday, discussed the Organisational Hierarchy under the Aadhaar project- the biometric data of the residents applying for enrolment passing through the enrolling agencies, which may be private players, to the registrars and the Registrar General of India, and finally, to the UIDAI.On Thursday, he cited names of some private enrolment agencies appointed in the year 2012-13 and their contact persons. He also submitted that ...

Aadhaar [Day-2 Session-2] Violation Of Fundamental Rights Cannot Be Validated Retrospectively: Shyam Divan

Mehal Jain

Tags