Compulsory disclosure of gender identity in Aadhaar violates the Constitution's Article 14, it was argued
The Supreme Court was told on Tuesday that the parting of personal biometric and demographic information by transgenders and sexual minorities under the Aadhaar Act exposes them to "violence, surveillance and harassment by the State and private persons".
"Once the personal demographic details of transgenders and sexual minorities is declared, it exposes them to surveillance, violence, and discrimination including infringement of their fundamental right to life and liberty, equality, free speech and movement," NGO Swatantra told a constitution bench.
The five-judge bench, comprising Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, is hearing a batch of petitions including by former Karnataka High Court Judge KS Puttuswamy, Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon and others challenging the constitutional validity of the Aadhaar Act.
Appearing for Swatantra, advocate Jayana Kothari told the court that agencies collecting demography information for Aadhaar could not insist on the disclosure of gender identity as it is covered under privacy.
Pointing to the Supreme Court granting transgenders the legal status by recognising them as the third gender, Ms Kothari said the compulsory disclosure of gender identity while parting with biometric and demographic information was violative of the Constitution's Article 14.
Referring to the top court judgment upholding right to privacy as a fundamental right, Ms Kothari said this would also include the right to informational privacy which permits individual control over the dissemination of personal information including gender identity.
Mentioning past and prevailing laws, including the Karnataka Police Act and Telangana Eunuchs Act, Ms Kothari said "these laws continue to enable the State to target and prosecute (people from the) transgender community solely on the basis of their gender identity".
Ms Kothari told the court that Telangana Eunuchs Act is a "draconian colonial legislation" which empowers the State to make arrests solely on the basis of gender identity.
"A brief review of existing legislation, ongoing litigation and State action (and)prosecution confirms that wherever the State has been permitted to aggregate information about transgender community it has often led to systematic discrimination and oppression of the community in India," Ms Kothari said.