Continuing with his arguments in the Supreme Court on Friday, senior advocate Shyam Divan made one of the most compelling arguments on civil liberties in Aadhaar case.
Divan’s arguments touched upon the constitutionality of the amendment to the Income Tax Act without going into the privacy aspects of the case.
Justice AK Sikri and Justice Ashok Bhushan were taken through multiple limbs of his arguments for over an hour.
Divan began by making an argument surrounding ‘informational self determination’.
He cited rulings of a German constitutional court to explain an individual must have the right to determine what information belonging to him can be used and cannot be used.
Divan linked this argument to right to dignity under Article 21.
Later he brought in the right to be let alone, differentiating it from right to privacy.
The crux of his argument was that if a citizen is aware that he is being watched, he might not dissent and this violates his right to participate in political affairs of the state.
Divan also argued that data protection is directly and indirectly linked to human dignity.
“Even if you do not put this as a constitutional right, this is a legitimate interest of the citizen,” he said.
Divan later explained how there is no privity of contract between the private firm that collects information for UIDAI and the citizen.
“Why should a private agency have my bank statements (given as proof as identity and address while obtaining Aadhaar)? Can the state force me to part with my private information to a private agency,” he asked.
Divan had pulled out a specific page from the UIDAI handbook to registrars under the UIDAI Act and pointed out various loopholes in the law that allows them to store private information and devise their own security measures.
Divan then proceeded to cite Bijoe Emmanuel ruling of the court to say that a citizen cannot be compelled to act against his will under Art. 19(1)(a).
Justice Ashok Bhushan pointed out that Bijoy was about right under Article 25. Divan pointed the bench to the specific para of the judgment that mentions both the articles.
Divan quoted part of a House of Lords ruling, specifically, Lord Atkin’s dissent in Liversidge vs Anderson. According to Divan, this is the only explanation for defending the amendment that the government.
“When we say it's voluntary, it means compulsory. Please do not allow the government to make this Humpty Dumpty interpretation,” Divan said.
“I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that's all.’” (Through the Looking Glass, c. vi.) After all in this long discussion, the question is whether the words “If a man has” can mean “If a man thinks he has”. I am of opinion that they cannot, and that the case should be decided accordingly.”
He added, “Since you can’t make mandatory in one Act, you can’t wink wink and make it mandatory under another Act.”
Senior Advocate Shyam Divan was assisted by Advocate Udayaditya Banerjee.
Read the main points of Divan's Arguments as follows;
a) Biometric information, specifically finger prints and iris scan are intimate parts of a person’s body. They belong to the person, not the State.