2016 Aadhaar law can't cure right to privacy invasion since 2009: SC told

The Supreme Court was on Wednesday told that the invasion of citizens' right to privacy -- by collecting their biometric data under Aadhaar scheme through an executive order since 2009 -- can't be saved and validated by a 2016 law.

"The invasion of my right (to privacy) by collecting and sharing my personal information with other players can't be cured by the subsequent law validating the Aadhaar scheme," senior counsel Gopal Subramanium told a five-judge Constitution bench.

He was referring to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

The bench, headed by Chief Justice Dipak Misra and also comprising Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan, referred to Section 59 of the Aadhaar Act, saying that the validation of the exercise carried out prior to the coming of statutory regime was to "cure an illegality".

Appearing for petitioners -- Maj. Gen. S.G. Vombatkere (retd) and Col. Mathew Thomas (retd), Subramanium said that Aadhaar Act, 2016 was an attempt to cure the illegality but "what is curable must be in the realm of curability".

Told that the law had prospective application, the court said that no penal law can be retrospective but the consequences of penal law is retrospective as it pointed to Section 59 that seeks to validate all the government notifications since 2009 for collecting biometric data and its use.

"Should we destroy data which was collected for seven years on the strength of government's notification" without statutory backing, asked the court as Subramanium insisted that biometric data collected from 2009 on the strength of the government's notifications was illegal and could not be cured and validated by the 2016 law.

Telling the bench that there are things "we don't want to share", Subramanium asked "how can you have a mean of identification for all your activities".

As the court said that at the heart of the Aadhaar Act is "authentication" of identity, Subramanium said that there was no form of "substantive and procedural" redressal.

"What we have parted is parted for good" and why should "we be in the state of servitude to the state," he said.

The bench is hearing challenges to the constitutional validity of the Aadhaar scheme on the touchstone of the fundamental right to privacy on a batch of petitions by former Karnataka High Court Judge K.S. Puttuswamy, Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon and others.

The hearing will continue on Thursday.