Aadhaar hearing: Senior counsel Rakesh Dwivedi argues that balancing between rights is a symbol of justice

On Day 31 of the , senior counsel Rakesh Dwivedi continued his arguments on behalf of the Unique Identification Authority of India (UIDAI). He argued extensively on the issue of balancing of fundamental rights, arguing that this balance is a symbol of justice. Further, he discussed the reasonable expectation of privacy with respect to the data collected under the Aadhaar Act.

Amartya Sen on un-freedom

Dwivedi commenced his arguments for the day by quoting Amartya Sen, ‘Development requires the removal of major sources of un-freedom, poverty as well as tyranny’. The Bench, here, observed that liberating people from un-freedom or poverty was at one end of the spectrum, and privacy at the other. Aadhaar, they said, is only a means of identification, and thus the only caveat is that there should be no exclusion.

Here, the counsel repeated his argument that the advantage of Aadhaar was that it made the provider of benefits come face to face with the beneficiaries. The Bench, here, observed that this may not be the best model, since the individual should not be a supplicant and instead the State has a duty to provide him with benefits.

Aadhaar and the protection of human rights

The counsel then cited the Statement of Objects of the Protection of Human Rights Act, 1993, which sets up the National Human Rights Commission and State Human Rights Commission for the protection of human rights. India being a signatory to many related international treaties on this was also cited. Next, he argued that various judgments of the Supreme Court, which discuss economic and social welfare had led to the enactment of the Aadhaar Act.

Balancing fundamental rights in view of public interest

He then turned to various landmark judgments which dealt with the need to balance the various fundamental rights. The case of Subramaniam Swamy v. Union of India on criminal defamation was discussed. The discussion was on the balancing of the right to freedom of speech against the right to reputation. Next, X vs. Hospital Z was cited, where an HIV patient’s right to marry and right to privacy has to be balanced against his fiance’s right to know. These cases laid down the test to be applied to balance in case of a conflict under Article 21: the test is of the larger public interest and the balance that would, in certain circumstances, advance public morality.

Two types of conflict for balancing rights

Along these lines, several case laws were cited, including G.Sundarrajan v. Union of India on the set up a nuclear power plant, Asha Ranjan v. State of Bihar, which discussed balancing of rights in relation the respondent’s right to a fair trial, and other cases. Two types of conflicts were drawn out, that between two individuals with respect to the same fundamental right, and that between two separate rights under the same fundamental right, for a single individual.

Further, it was argued that Section 7 of the Aadhaar Act covers the human rights of the people of the country. The Court, it was urged, must act as a sentinel to ensure that the right to privacy is balanced with all other rights under Article 21 that Aadhaar covers. It was argued that balance is a symbol of justice, and there shouldn’t be extremes with the rights in question. Instead, both should exist. Further, the case of Indu Devi v. the State of Bihar was cited, where a woman’s right to choose to have an abortion was dealt with against her right to life.

Further, the counsel argued that privacy was a small price to pay for ensuring life itself, along with other rights under Article 21 of the Constitution.

Reasonable expectation of privacy

Next, the counsel turned to the reasonable expectation of privacy, quoting from the Puttaswamy judgment on the matter. Further, a distinction was drawn between the types of information dealt with under the Aadhaar Act for demographic information, optional demographic information (mobile numbers and e-mail), core biometric information, and biometric information such as photographs. He argued that most data collected by Aadhaar was basic data that was available everywhere. The Bench, here, observed that caste, religion, etc. were excluded from the ambit of the Aadhaar Act.

He argued that the reasonable expectation of privacy varies from one set of data to the other, for instance, it will be lower with respect to demographic information and photographs, since such information is already publicly available.

Public apprehensions with Aadhaar data misuse

The counsel further argued that the only concern was the real and general apprehension of the public with respect to Aadhaar. The Bench here observed that the question was of using the data in a manner and for purposes which are unauthorised and against the individual. Further, it was observed that some of the fears of the public were misconceived.

The arguments will continue on 24 April 2018.

Sources of arguments include live-tweeting of the case by and  and .

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The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.