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After the Aadhaar hearing resumed on Tuesday before the five judge constitutional bench of Supreme Court, Counsel appearing for petitioners Mr. Kapil Sibal has proceeded to compare the biometric system of both India and Israel. The counsel has argued that the Israel system takes in to consideration factors of consent, it also takes regard of voluntariness factor which the Indian system doesn’t. There is no collection of metadata in their regime. Further the data of citizens collected is only used for the purpose, for which it was collected. There is also a very narrow scope for public to access the data. The Aadhaar Act has this clause which clearly says that the data collected can be disclosed for purposes of national security. He went on quoting a very important observation made by the apex court in Justice Puttuswamy Judgement which mentions that ‘Information is knowledge’ a continuation to the very old adage, ‘knowledge is power’. He has said that every site that a person visits leaves electronic tracks generally without knowledge, this electronic tracks are further followed to gain knowledge about likes and dislikes of a person. The acquisition of information possessed by these service providers is scattered. The mandatory linkage of Aadhaar card for delivery of basic services like ration, subsidies, health services etc are frustrating the purpose of public interest that the scheme intends to serve. Mr. Sibal has strongly objected to accumulation of all sensitive, personal, demographic information in one entity. He has argued that it leaves a lot for abuse of power to happen. He also pointed out that though section 3 of the Aadhaar Act requires that the acquisition of information from a citizen should follow after obtaining informed consent, however the whole Aadhaar process has taken the nature of mandatories. Further, Section 32 (3) restrains UIDAI from collecting any data for purpose of authentication, but the Aaadhar regulation of 2016 allow such data from these transactions to be stored. Mr. Sibal has pointed out certain discrepancies in the Aadhar framework, that there is no rational nexus between linking Aadhaar details for delivery of subsidies and other such benefits, secondly every enactment or policy decision has to pass the test of proportionality that the objective for which the statute or the policy decision was introduced has to kept in the line of sight and it also needs to be examined whether the said law is the least restrictive way of achieving the said objectives. Section 23 of UIDAI empowers it to call for information and records, conduct inspection, inquiries and audit of operations being carried out. Justice Sikri responded with the culture of justification argument prevalent in South Africa where the state is responsible to justify the rationality of its action. Mr Sibal has asked for the audit reports to be produced as a form of justification for the fact that there hasn’t been any abuse of power with regard to the whole Aadhaar Framework. Mr. Sibal has further said that the Aadhar legislation doesn’t pass the test of Article 14 and Article 21. There are many other benefits which are available to the non-residents of this country. He asked whether those benefits require mandatory linkage with the Aadhaar data framework. Thus, he said that Aadhaar is violative of fundamental rights guaranteed under Part III of the constitution.
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