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On Days 17 and 18 of the Aadhaar hearing, the counsels appearing for the petitioners continued with their submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. The Bench has asked the petitioners to conclude their arguments on the next date of hearing.

Below are the highlights from Days 17 and 18 of the Aadhaar Hearing:

Submissions of Senior Advocate KV Viswanathan:

  • State doesn’t have the power to compel citizens to do particular acts except in certain defined circumstances.
  • Subjecting vast majority of people to a probabilistic method of authentication is of grave concern.
  • The presumption of criminality inherent in the collection of identity information is disproportionate and arbitrary.
  • In case of Aadhaar, biometric data of individuals is collected by enrollment agencies who are private entities. There is no judicial or independent oversight.
  • Aadhaar Act, 2016 is violative of privacy. Centralised storage of data in CIDR is disproportionate.
  • Absence of a right to access one’s own biometric data is violative of Art. 19 & 21 and represents state’s failure to fulfill its obligation of providing unimpeded access to the individuals’ own data.
  • The Act legitimises mass surveillance by State which is antithetical to the principles of democracy. It doesn’t define ‘national security’ and doesn’t require any ex-ante or ex-post independent oversight.
  • Section 7 is unconstitutional and violates Art. 14 of the Constitution as it has resulted in the exclusion of most marginalized sections of society. Gives the examples of rates of authentication failures in Rajasthan(37%) and Jharkhand (49%), citing Economic Survey of India.
  • The validity of the Act is to be judged not by its object but by its direct effect on the fundamental rights of the individuals.
  • Right to food is a fundamental right and mandatory authentication violates that right.
  • Govt. has failed to discharge its burden of proof to justify such infringement under Art. 21. It has also failed to show how Aadhaar has resulted in stopping the losses and caused significant savings.
  • Aadhaar based authentication, at best, helps only in identity fraud and none others.

Submissions of Senior Advocate Anand Grover:

  • Under the Aadhaar Act, unauthorised and excessive data is being collected. CIDR is protected but data is distributed at all sorts of locations which are not protected.
  • Govt. had claimed that all the data in SRDH had been destroyed. That cannot be done just be deleting it from one place. It is a complex process.
  • Authentications done in case of a tuberculosis control programme can disclose health info of a group of individuals within that region.
  • One necessarily cannot have a unique identity. A thumbprint can match with one person in a million. By using a thumb print and the iris both, one can narrow down but still, it will not be unique.
  • It was assumed that the iris cannot be changed. However, a study shows that within three years, quality of iris changes.
  • Contracts of UIDAI with foreign agencies for multi-modal biometric systems rendering it ‘insecure ab initio’. The Act specifies that no one else is supposed to have all these information. However, these agencies had access to all the data. There’s a complete failure to ensure the safety of data which is required under the law.
  • Because of the inherent personal nature of data, State has to ensure its protection. If it can’t ensure it, it cannot take such data.
  • Fingerprints can be duplicated very easily.
  • UIDAI has not stopped accepting authentication requests from unregistered devices.
  • All security measures are ad hoc. As when problem arises, measures are devised to cover it.

Submissions of Senior Advocate Meenakshi Arora:

  • Privacy judgment recognises that wherever there is data collection, it can result in surveillance.
  • In the cloak of mass surveillance, the democracy can be destroyed rather than being protected. This will result in the chilling effect due to 360° view on the individuals at all times.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


Hot Off The PressNews

As the Aadhaar Hearing reached Day 16, Senior Advocate P. Chidamabaram concluded his arguments on the issue of Aadhaar Act, 2016 being introduced as a Money Bill before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. The most important take away from Day 16 hearing was that the Court scrapped the present deadline for linking Aadhaar stand extended till the final disposal of the matter.

Below are the highlights from Day 16 of the Aadhaar Hearing:

P. Chidambaram’s Submissions on Money Bill issue:

  • Speaker’s decision is not final. It is subject to judicial review.
  • (Reads S R Bommai v. Union of India) The satisfaction ofthe President mentioned in clause (1), shall be final and conclusive and shall notbe questioned in any court on any ground.
  • Any bill if passed in the guise of money bill strucks at the basic feature of Constitution i.e. federalism.
  • (Reads Raja Ram Pal v. Speaker) Validity of any proceeding in the Parliament on grounds of irregularity of procedure cannot be looked into by the court. However, illegality can be a ground for the courts to exercise judicial review. If the impugned procedure adopted in Parliament is illegal and unconstitutional, judicial review lies.
  • The question why it was termed as money bill was raised by MP Jairam Ramesh in the discussions. He had moved for amendments in the bill which were adopted in Rajya Sabha, however, these amendments were not considered by the Lok Sabha and it was passed in original.
  • The apparent object of the Aadhaar Bill is to make a law that will fit into Article 110(1)(c) & (g).
  • Chandrachud, J: If we cross the threshold of justiciability, which are the provisions are relatable to Art. 110?
  • Chidambaram: Question should be is there any provision in the Act which doesn’t fall under Ar. 110 (a) to (g). Because money bill can’t have any provision beyond (a) to (g). Provisions such as Section 57, 54, 23 go beyond the scope of Article 110. And hence it is not a money bill but merely a financial bill. It wasn’t a money bill when introduced or certified.
  • Chandrachud, J:  Does the entirety of the bill has to go or the portions can be severed-those provisions which fall under Art. 110?
  • Chidambaram: It will go in entirety. The provisions are not severable.
  • The provisions make it clear that it was not a money bill, then how could it have been passed as a money bill and the scrutiny of Rajya Sabha been bypassed. If this could slip through as a money bill, virtually any bill could slip as a money bill. It sets a very dangerous precedent. Money bill is an extremely narrow subset of financial bill. This bill goes far beyond the intended purpose of delivery of subsidies.

Submissions on issue of Aadhaar being made mandatory for Tatkal Passport:

  • Arvind Datar: Government can’t make Aadhaar mandatory in violation of SC order. (Further asks the court to consider extension of deadlines.)
  • AG KK Venugopal: There are other IDs eg. water bill, electeicity bill which can be taken. Aadhaar is only for expediting the procedure. Says that in case of passport under tatkal scheme, Aadhaar is required for out of turn consideration to expedite the process. (Requests that the extension of deadlines should not affect section 7- the subsidies.)

Hence, Court passed an interim order directing that the order passed on earlier occasion stands extended and that this extension would also cover the issue of passports.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


Case BriefsSupreme Court

Supreme Court: After Senior Advocate Arvind Datar brought to the notice of the Court that the Central Board of Secondary Education (C.B.S.E.) has passed an order directing all the students to produce Aadhar number to register themselves for the National Eligibility-cum-Entrance Test (NEET) examination, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, directed:

“the students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

The Court also asked C.B.S.E. to upload the necessary information on their website so that students are not affected.

The said interim order was passed during Day 15 of the Aadhaar Hearing where Senior Advocates like Shyam Divan, Kapil Sibal, Gopal Subramanium and Arvind Datar have been arguing on the issue of Aadhaar being made mandatory by the Government despite various interim orders passed by the Supreme Court. Senior Advocate and Former Finance Minister P. Chidambaram had begun his submissions on the issue of Aadhaar Act, 2016 being passed as a Money Bill. He will continue his arguments on the next date of hearing i.e. March 13, 2018, after which the Court will decide on whether or not to pass an interim order on the issue of extending the deadline for linking Aadhaar to Bank Accounts. As per the present deadline, it is mandatory to get the Aadhaar linked to the Bank accounts by March 31, 2018. The Court had earlier, on 15.12.2017, extended the deadline for linkage with Schemes, Bank Accounts, Mobile Phones from December 31, 2017 to March 31, 2018. [Justice K.S. Puttaswamy v. Union of India, Writ Petition (Civil) No.494/2012, order dated 07.03.2018]

Also, read the highlights from the ongoing Aadhaar Hearing before the 5-judge bench:

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Hot Off The PressNews

Senior Advocate Arvind Datar continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on Day 15 of the Aadhaar Hearing. Earlier, on Day 14, he had argued on the issue of Linking Bank Accounts to Aadhaar as per Rule 9 of Prevention of Money-laundering Act, 2002. After Arvind Datar concluded his submissions, Senior Advocate P. Chidambaram began his arguments on the issue of Aadhaar Act, 2016 being introduced as a Money Bill.

On the question of extending the deadline for linking Aadhaar, Chandrachud, J said:

“we cannot extend the dates for linking at the last moment because the financial institutions will be in a state of uncertainty till then thinking 31st March to be the last date for linking.”

The Court, however, said that it will pass an interim order, if required, on the issue on the next date of hearing i.e. 13.03.2018, after P. Chidambaram has concluded his submissions.

Below are the highlights from Day 15 of Aadhaar Hearing:

Arvind Datar’s submissions:

  • If you don’t give Aadhaar, your accounts will become inoperable. It can’t be called consent. There’s no option to opt out.
  • Aadhaar was preceded by NIA bill. Aadhaar Act was only for the purpose mentioned in the objects and using it for any other purpose would be invalid.
  • Chandrachud, J: The moment you extend Aadhaar to private entities, the money bill aspect will be gone.
  • Arvind Datar: Yes. The Act was passed as a money bill without any regard to the recommendations of Rajya Sabha. Had it not been a money bill, it would go to Rajya Sabha, recommendations would be considered, and Section 57 would not be there. An opt out clause would be there.
  • If one party is in dominating condition, it is not a free consent which is the case in this matter. To enroll or not to enroll is my choice. It is my decisional autonomy to part with or not to part with my personal information.
  • Today it is not possible for a person to survive without an Aadhaar. It has its intrusion from birth to death of an individual.
  • Aadhaar/PAN judgment should be revisited in light of the privacy judgment:
    • After Privacy judgment, it is the personal autonomy of the person whether she wants to take Aadhaar or not or even if she has aadhaar- whether she wants to link Aadhaar or not.
    • Attorney General, during the PAN case, had stated linking Aadhaar with PAN is the only foolproof method to ensure there are no fake PAN. (Tells about the case where a person entered 12 zeroes while filing income tax returns, his returns were accepted and refund processed.)
    • If your purpose is to eliminate fakes, it need not be perpetual. After achieving the purpose, my data should be returned. What is the need to keep it perpetually?
  • Mandatory Aadhaar for applying for NEET Exam:
    • In Gujarat, one cannot apply for NEET entrance exam without production of Aadhaar, last date being 9 March. Saya that it is a clear violation of the interim orders of the Court.
    • Attorney General KK Venugopal:  State has not authorised CBSE to make Aadhaar mandatory for entrance exams.
    • Bench: “Any such authority has the right to ask for some kind of identification but not exclusively Aadhaar. We will consider the relief for this particular case at the end of Mr. Chidambaram’s arguments.”

P. Chidambaram’s submissions on the issue of Money Bill:

  • Can one can bypass the scrutiny of Rajya Sabha by terming a bill as Money Bill?
  • A money bill cannot be introduced in Rajya Sabha. In this case, Rajya Sabha becomes only a recommending house. They have no legislative power but only recommendative power.
  • Money bill is a very special kind of bill. Therefore, in the light of denudation of the powers of Rajya Sabha and deprivation of powers of President, these provisions should be construed very narrowly and strictly so that nothing escapes in the guise of money bill.

Interim Order on Aadhaar being made mandatory for Entrance Exams:

The Bench passed an interim order on the CBSE NEET entrance exam and all other All-India examination that the applicants need not produce Aadhaar number for applying. They can produce any alternative means of identification including Ration card, driving licence, etc. The order will also be uploaded on the CBSE website.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


Hot Off The PressNews

When the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, assembled after Holi Break for Day 14 of the Aadhaar hearing, Senior Advocate Arvind Datar began his submission by asking the Court to consider extending the deadline for linking to avoid a fait accompli. The present deadline is March 31, 2018. Senior Advocate Shyam Divan also added that the Supreme Court’s interim order also says that the arrangement is to last till the conclusion of the case. However, Attorney General KK Venugopal asked the Court to consider the question in the last week of March.

Below are the highlights from Arvind Datar’s submissions on Day 14 of the Aadhaar Hearing:

Main Arguments to be advanced by Arvind Datar:

  • Challenge to Linking Bank Accounts to Aadhaar as per Rule 9 of Prevention of Money-laundering Act, 2002 (PMLA)
  • Aadhaar Act, 2016 could not have been a money bill. Rule 9 violates Article 14. And in the alternative, if the Aadhaar project is upheld, it can’t go beyond subsidies.
  • The Aadhaar/PAN judgment should be revisited in light of the privacy judgment.
  • All State action before the Aadhaar Act, 2016 cannot be saved. There has been a continuous and flagrant violation of this Court’s orders, which should not be condoned.

Challenge to Linking Bank Accounts to Aadhaar as per Rule 9 of Prevention of Money-laundering Act, 2002 (PMLA):

  • There is a Master Direction, that provides for customer identification procedures. The Master Circular covers all issues with respect to bank accounts. The impugned rules give contradictory directions (Aadhaar linking).
  • Under the master circular, there exist provisions for due diligence both at the time of opening the account and subsequently. Suspicious transactions are red flagged and investigated.
  • There is a provision of the master circular that does not require multiple proofs of ID. The customer can submit one of six possible IDs. This conflicts with the Rules, which only allows Aadhaar.
  • The due diligence requirements under the circular, which specify the kinds of suspicious situations under which monitoring of accounts can be done.
  • The Circular completely covers the field. The Circular says that you can open an account with one of six IDs. The core question is that if the Master Circular gives you a choice of six IDs, can Aadhaar then be made the only mandatory ID under separate rules.
  • Aadhaar and PAN or Form 60 are necessary to be provided for bank accounts.
  • Aadhaar is only required to establish the identity of the individuals not the companies. You cannot ask for Aadhaar of the individuals in the company.
  • The impunged rules say that if the Aadhaar number is not provided then the accounts will stop operating. This is in violation of SC order which made Aadhaar voluntary and limited to only specific schemes. It also violates Article 300A as it deprives a person of his property.
  • Chandrachud, J: They are not forfeiting the property. The amount in the account will not get forfeited.
  • Arvind Datar: They are depriving me of the property- deprivation maybe temporary or permanent.
  • Even if Aadhaar Act is assumed valid, the enrolment form says that Aadhaar is free and voluntary. But now Aadhaar has been made mandatory for everything.
  • Aadhaar is entitlement. I am entitled to passport. I may or may not obtain a passport.
  • Law recognises two categories of people- who want an Aadhaar and who do not want an Aadhaar. There’s a choice. But not so in case of PMLA rules. A person runs a risk of getting his account closed.
  • Chandrachud, J: The disability to be able to operate bank accounts doesn’t occur from Aadhaar Act. It does in case of PMLA rules.
  • Arvind Datar: Aadhaar is supposed to be ‘some kind of national detergent’ which will get rid of the fake PAN cards and fake bank accounts. You can’t make a group as suspects.
  • CJI: You’re an account holder and have a status. The statute wants you to establish your identity. (Asks if the argument here is that in light of existing KYC identification systems, we do not need another.)
  • Arvind Datar:  There is no reason why 1 billion people are being asked to link their accounts to Aadhaar. There must be some purpose behind it.  Any rule made must have a nexus with the Act. As far as rule 9 regarding Aadhaar is concerned, it has no nexus with the Act.
  • It is not the intention of Government of India that every transaction from every account should be reported. It is only in connection with the money laundering that the Act has nexus with accounts.

The bench will continue hearing the submissions of Senior Advocate Arvind Datar tomorrow who has told the Court that he will finish his arguments by Lunch tomorrow.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: and

Hot Off The PressNews

On the 13th Day of the Aadhaar Hearing, Senior Advocate Gopal Subramanium consluded his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, after which Senior Advocate Arvind Datar took the center stage and began with his arguments.

Below are the highlights from Day 13 of the Aadhaar Hearing:

  • Privacy judgment talks about identifying eligible recipients but the present Act does not identify eligible recipients, instead it provides proof of identity.
  • Sans criminality or any offence being committed, people cannot be asked to give their biometrics. Biometric authentication was considered only in the case of commission of crime.
  • Launching of electoral rolls for purification-linking it with Aadhaar: A 3-Judge Bench of the same court had issued a note, post which the programme was suspended.
  • Aadhaar Bank linking:
    • Aadhaar bank linking is for money laundering but NPCI is making the database available to private parties. Anyone can get a profile of an individual from the State Resident Data Hubs. Says there’s no limitation on what info can be stored in SRDH.
    • Rakesh Dwivedi: SDRH were established under MoU under the UPA regime. After the act was enacted, the data was destroyed.
  • The authentication agents are not govt. agents. They’re private players. Aadhaar bridge is an invitation to business which would be done through this agent.
  • Chandrachud, J: Section 57 only allows authentication by the private parties then how do they get access to the data.
  • Gopal Subramanium: Due to seeding of Aadhaar with multiple databases, the entity can gain access to the profile of the individuals.
  • The burden of updating the information in CIDR is on the individuals.
  • Chandrachud, J: The govt. can’t be expected to keep a track of all the changes.
  • Gopal Subramanium: Demographic is another thing, but how will an individual get to know that she’s due for biometric updation?
  • Khanwilkar, J: In case of an authentication failure, the person can go for updation.
  • Gopal Subramanium: An authentication failure is viewed as the person being a ghost, fake nowadays.
  • In case the biometric info is lost or changes subsequently, the individual will have to request UIDAI to make alterations in his records.
  • In case authentication fails, the entitlements may be annulled, resulting in permanent disablement. Due to technology, the possibilities of profiling are very strong.
  • The algorithms are unpredictable in nature. UIDAI is not the algorithm writer. What guarantees do we have then?
  • With big data, we can get the details of the individuals, especially if combined with other data sets. It can even give geographical data of the individuals.
  • In the absence of a data protection law, the injury or vulnerability is heightened. No assurance can lessen that.
  • The data retention should also follow reasonable and substantive reasonableness. It cannot be for all the people. That’s very broad.
  • There’s an uncertainty associated with biometric systems. They’re probabilistic in nature. There is a risk of error.
  • (Refers to the interim orders of the SC) Everyone including the govt. is bound by the orders of the Court. But, after 2016 Act, the govt. did not obey those orders. There has been a continuous violation. Petitioners have brought to the notice of the Court continuously. Now in 2018 we have starvation deaths. Court must grant exemplary damages and compensation to those who lost lives or were otherwise excluded.

Senior Advocate Gopal Subramanium concluded his submissions and Senior Advocate Arvind Datar began his arguments. However, CJI asked him to submit a note on points to be covered and then elaborate on those 6th March onwards.

The Bench will now hear the matter on 6th March 2018 after Holi break.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click here and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


Hot Off The PressNews

On the 12th Day of the Aadhaar Hearing, Senior Advocate Gopal Subramanium resumed his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. On the day before, he had argued that identification of citizen through a number was completely destructive of dignity. He said:

“State is treating people like they are a flock of sheep. Even a flock of sheep requires someone more transcendental to lead.”

Below are the highlights from Gopal Subramanium’s arguments on Day 12 of the hearing:

  • Constitutional value of human dignity:
    • To live is to live with dignity. (Refers to the case of Subramanian Swamy which talks about the concept of reputation as a natural right- a facet of dignity)
    • Lack of authentication has led to deprivation which has led to debt. It is an accountable State architecture. The insignia is some kind of probity and rectitude which should be assured.
    • I agree that people should have a political identity. However, there are two expressions- ‘identity’ & ‘identification’ and it is the former which has constitutional relevance. Minimal, regulatory identification is fine but identification for availing rights is not.
    • State has a duty to be citizen friendly.
    • Aadhaar Act, 2016 has an element of objectification. It depersonalises an individual. It eliminates any form of transaction except through the medium of this Act.
    • Unique identity cannot be given by a number. Identity is as natural as the life itself. State is obliged under Article 13 to respect the rights of the individuals.
    • State cannot use this present mechanism to find out the ghost people. State needs to have a better mechanism which make it accountable and follows due procedure.
    • Opacity is antagonistic to rationality. The law must be able to rationalize its objectives.
  • Informational privacy:
    • The statute itself gives evidence that there is an aggregation of data including the metadata.
    • (Chandrachud, J asks to read para 309 of the privacy judgment which talks about monitoring web for national security.) It is different. It talks about monitoring of web not aggregation. In case of aggregation of data, if somebody hacks into the database, what will become of the individuals.
  • Section 59 of Aadhaar Act, 2016:  
    • The expression ‘by law’ under Section 59 of the Aadhaar Act means law in present time and not retrospection.
    • If there’s an invasion of fundamental rights, what is without the authority of law cannot be deemed to have been done under the authority of law.
    • Interface of accountability takes place at the lowest level, state and then union level. Says Aadhaar violates the federal nature. (Refers to proviso to Article 73(1) of the Constitution. Enlists the entries in the concurrent list concerning Aadhaar)
    • To examine Section 59, two points will have to be considered i.e. absence of law and invasion of rights.
      • A law cannot subsequently cure the invasion of rights. De-facto and de-jure invasion has taken place here. It is complete. And in such a case, a law cannot retrospectively cure such actions.
      • Chandrachud, J: In context of section 57 that whether, prior to 2016, State govt. also utilised Aadhaar?
      • Gopal Subramanium: State govts. entered into MoUs to establish State Resident Data Hubs.
      • Why should the beneficiaries of the schemes beg the State to get their entitlements?
      • The heart and soul of this Act is authentication. If authentication fails, consequence is disablement. In such a case, there’s no form of substantive or procedural redressal.
      • This Act doesn’t even provide for retrieval of core biometric information. To compensate it gives provision of update. But how will an individual come to know that his biometrics need updation?

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


Case BriefsSupreme Court

On the 11th Day of the Aadhaar Hearing, Senior Advocate Gopal Subramanium resumed his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ by saying that “Aadhaar Act is unconstitutional.” Gopal Subramanium had, on Day 10 of the hearing, argued:

“Aadhaar “disintermediates” the State i.e. it erases accountability. This is crucial for Article 14 of the Constitution. When you claim a violation of constitutional rights, it must be decided by a person, and not by a computer or an algorithm.”

Below are the highlights from Gopal Subramanium’s submissions on Day 11 of the hearing:

  • After Privacy Judgment read with NALSA and Subramaniam Swamy (defamation case) judgments, it is now clear Article 21 includes within its sweep, dignity.
  • It has been held that when it comes to individual rights versus state concerns, it is the former that has primacy. State action needs to be tested for substantive and procedural due process. Article 14 is not only about nondiscrimination.
  • Aadhaar Act, 2016 has no legitimate aim. Legitimacy of aim needs to be both for discernible ends..but also means. Act suffers from excessive delegation. Act cannot retrospectively validate abrogation of Fundamental Rights.
  • Biometrics itself is flawed and algorithmic behavior is itself irrational and beyond UIDAI control.
  • Theory of potential harm: Overwhelming harm is shown, standards of scrutiny much higher and the Act does not stand scrutiny.
  • Virtual person whether reduces real personhood
    • Negation of the existential identity through an algorithmic process without human accountability and no reference to justice is clearly unjust. Justice is the queen of all virtues.
    • Inability to access justice is an overarching theme in this Act.
    • Act is unconstitutional irrespective of the 50’s and 60s standard ( In Re Delhi Laws Act and Amwar ali Sarkar) or the 70s standard (Cooper and Keshavananda and Menaka) or through modern Puttaswamy standards, this Act fails the reasonableness test.
    • Act impairs people from mobilising and constitutes an invasion.
    • The ability to negate the personhood not merely causes civil death but constitutional death, which is not possible.
    • Act’s contemplation of ‘ubiquity’ , playing God so to speak, is contrary to a constitutional goal of self-actualisation for everyone.
    • Rights and existence or entitlement cannot be subject to the vicissitudes of probability. Constitution guarantees against vicissitudes.
    • Even assuming a benevolent state, it cannot guarantee the benevelonce of an algorithm they do not and cannot control, therefore, the project is architecturally unconstitutional.
    • The State demanding disclosure of status itself is demeaning and contrary to affirmative duties of the State.
    • Every child is required an aadhaar to get a birth certificate. State is treating people like they are a flock of sheep. Even a flock of sheep requires someone more transcendental to lead. (Chandrachud, J smiles)
    • Silos of information including human relations cannot be centrally aggregated.
    • The survival of existential identity or transactional identity is protected as an inalienable right under the Constitution.
    • The survival of existential identity or transactional identity is protected as an inalienable right under the Constitution. The very attempt to homogenise identity is an anathema to the Constitution.
    • Our constitution includes the best of two schools of conception of human rights. The Dworkin school of protected interests as well as the Joseph Raz school of excluded reason.
    • Identification of citizen through a number is completely destructive of dignity.
    • How does a man plead a case against the opacity of technology. What indignity is this? This not a mere violation of a facet of Article 14. It is making a mockery of it.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


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As the final hearing in the Aadhaar matter approached it’s 10th day, Senior Advocate Kapil Sibal concluded his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Senior Advocate Gopal Subramanian began his submissions in the second session of Day 10 of the Aadhaar hearing. Below are the highlights from Day 10 of the hearing:

Senior Advocate Kapil Sibal’s submissions: 

Discussion on biometric database:

  • Comparing National ID Law of Israel and Aadhaar:
    • As per the National ID law of Israel, the ID Cards handed to the residents are voluntary in nature. There the biometrics are to be used only for the purpose they are collected for. Further, access to the database is also restricted to a particular purpose. No provision for metadata in their law.
    • Aadhaar is mandatory and for lifetime and consent is illusory. A regulation says that Aadhaar can be deactivated for national security purposes. The purpose of ‘national security’ is misused in India. Some NGOs are targetted for national security.

Discussion on ‘Information is power’:

  • Airbnb, Uber, etc own nothing. These services have information which is scattered and not connected. Information being aggregated poses threat. In silos, this information is inconsequential. Aggregated, it provides a picture of personality. We can’t argue that State cannot insist for national ID. But we can ensure that my ID is not in public, not in a centralised database and that when I am transacting with a person, the ID can be established.
  • On one hand we have public interest, on the other we have personal information in public domain. Gives an example that when I am travelling, it has nothing to do with public interest. Recently a woman had to deliver a baby outside the hospital for want of Aadhaar. Hospital/health information is not public interest.
  • State cannot choose how I prove my citizenship, only I can. And nobody can deny that.

Discussion on voluntary nature provided in section 3 of Aadhaar Act, 2016 but says that it is actually mandatory:

  • Log of such information is created and stored everytime a transaction is authenticated. However, the purpose of the authentication will not be known.
  • Metadata is also collected and stored.
  • Even in the absence of this section, some other Act could have provided for the use of Aadhaar for other purposes. However, this section brings out the true intent of the Act to establish it as an exclusive proof of identification for purposes other than the ones stated in the object.
  • Consent is for authentication. But the law requires to get the entitlement only through Aadhaar. Then, what’s the purpose of obtaining consent?

Discussion on concentration of information in a single entity:

  • Such a concentration gives enormous power to the entity. (Reads out the privacy judgment)
  • The Act also contains provision for Audits. The respondents should provide the reports of the audits that have been done.

Discussion on proportionality: 

  • For an act to be proportional, it has to be seen that:
    1.  What are your objectives.
    2. If your policy is the least restrictive way to achieve those objectives.
  • In the current case, there’s no nexus with the entitlement. It is violative of this doctrine.
  • The very concept of Aadhaar is inconsistent with the doctrine of proportionality. (Points out various provisions under Aadhaar Act which confer wide powers on the authority)
  • The State couldn’t stop the pilferage of food grains, it now has to be given personal data. How can it be trusted with the security of that data?
  • The purpose of Aadhaar Act was to provide for subsidies, benefits expenditure of whose was incurred from Consolidated Fund of India. Asks whether the whole expenditure has to be incurred from CFI or even the part? How is it to be interpreted?
  • It is my status from which the entitlements are to flow. There several entitlements which are available to non-residents. The State cannot deny benefits to anyone only for the want of a certain proof of identity.
  • Most of the entitlements flow from part III of the Constitution. Denial of those entitlement for want of a particular proof of identification is denial of those fundamental rights. This procedure doesn’t meet the test of either Article 14 or of Article 21 of the Constitution.
  • My right to livelihood is protected by the Constitution. Imposing a condition to exercise that right amounts to violating that fundamental right.

Discussion on the national register of citizens:

  • There’s no difficulty in connecting identity to status. However, my primary status is that of a citizen, not of an Aadhaar Card holder.
  • The Aadhaar architecture is defective. But even if it was perfect, Aadhaar could not be made compulsory or mandatory.
  • The doctrine of unconstitutional conditions holds that the State cannot make a benefit or privilege conditional upon an individual giving up their rights.
  • When you make essential benefits conditional upon giving up rights, you place individuals between “a rock and a whirlpool.” A condition that precludes you from enjoying a benefit on the basis of an unreasonable classification is void.

Discussion between the Bench and Kapil Sibal:

  • Chandrachud, J:  If the government was to give you choice of two identities, can you refuse to give either. If your entitlement depends on who you are, then can’t the government require proof on that count? Is it not a reasonable condition?
  • Kapil Sibal: Proof still has to be linked to what entitles you to that benefit in the first place, which is your status.
  • Chandrachud, J: Even if entitlement is beyond dispute, there has to be minimal way of proving who you are.
  • Kapil Sibal: But I can have different ways of proving that fact. There are various ways of establishing identity.  Aadhaar doesn’t establish my status. And I can prove my identity in other satisfactory ways.
  • Chandrachud, J: A condition is unconstitutional if it requires you to relinquish a constitutional right. He says that if the latter part is established, then why do you need anything further?
  • CJI: Kapil Sibal’s submission is that you can’t be asked to barter or surrender one fundamental right in order to have access to another.
  • Chandrachud, J (To Kapil Sibal)So your argument is that the constitutional violation lies in restricting the choice of identity to one?
  • Kapil Sibal: Yes.
  • Chandrachud, J: A premise of the argument seems to be that everyone has at least one form of identity. If a government program is an enabler for people who have no identity, would that save the constitutionality?
  • Kapil Sibal: Even if true, it would only apply to those cases.
  • Chandrachud, J: In that case, the government should be able to prescribe and make compulsory one identity for those who have none.
  • Kapil Sibal: No, the government can prescribe a method by which such persons can get an identity. (Points to the Aadhaar Act which requires pre-existing identities in order to get an Aadhaar, apart from the introducer provision). The point of Aadhaar is not to grant identity to those who don’t have it, but to authenticate identity. A condition imposed on the basis of status is reasonable, but this is not one. There can be a condition to prove my status, but on that, I have the right to prove it in a reasonable way. “Aadhaar is a colossus, and we are underlings”
  • Chandrachud, J: Your basic point is that a citizen must have a choice in deciding how to establish her identity.
  • Kapil Sibal: Yes, through a reasonable manner prescribed by law.
    • (Reads out a notification that makes Aadhaar compulsory for bonded labour rehabilitation schemes) Imagine the consequences.
    • (Reads out other notifications that make Aadhaar mandatory for child labour welfare schemes): Many of these schemes are meant for the most marginalised, and it is they who will be excluded. If this is not a denial of fundamental rights, then what is?
  • Aadhaar does not, as a matter of fact, stop pilferage or leakage
  • Sikri, J: Even if one reason for fraud is being taken care of through Aadhaar, then Aadhaar’s failure to take care of other kinds of fraud will not necessarily make it unconstitutional.
  • Kapil Sibal: It won’t, but it will raise questions about proportionality. Our argument is that the scheme is disproportionate. (Places on record a compilation that will repudiate all the factual claims made by the State.)
  • Sikri, J: All the other proofs of identity have been misused, like multiple passports. Maybe that’s a reason for Aadhaar, to prevent multiple IDs.
  • Kapil Sibal: People have multiple Aadhaars, and there’s no way that the State can show that that cannot happen.
  • Sikri, J: This is again a question of proportionality.
  • Kapil Sibal: This is the most important case since Independence. He says that this case is more important than ADM Jabalpur. ADM Jabalpur was a limited regime. Aadhaar is unlimited. This judgment will decide the course that this country takes. Will we live in a country where there is choice – or do we live in a country where the State is the arbiter of choice.

Senior Advocate Gopal Subramaniam’s submissions: 

  • The fundamental submission is that notwithstanding the advances of technology, the Constitution cannot be obfuscated.
  • There are existing forms of giving benefits that are consistent with the Constitution. A crucial factor of dignity is that the most marginalised are not exposed as the most marginalised.
  • Chandrachud, J: Social mobilisation is based on the assertion of status. GS says he agrees completely, and the question is whether Aadhaar interferes with status.
  • Gopal Subramaniam:
    • Bringing in the whole population into an aggregated database is a very serious issue.
    • There is a state of exception where fundamental rights can be suspended – but short of that fundamental rights cannot be suspended or bypassed.
    • The intrusion by the State has to be as minimalistic as possible. That is the soul of the Constitution.  the very concept of “identification” carried a pejorative sense.
    • Aadhaar “disintermediates” the State, that is, it erases accountability. This is crucial for Article 14 of the Constitution. When you claim a violation of constitutional rights, it must be decided by a person, and not by a computer or an algorithm.
    • The soul of Aadhaar is “continuous authentication.” He says that this privileges the digital person over the real person.

Gopal Subramaniam will continue his arguments on Thursday.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

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On Day 8, Senior Advocate Kapil Sibal continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of Aadhaar being violative of the right to equality as it disproportionately impacts people who are aged, people engaged in manual labour, disabled people, and so on.

Below are the highlights of Day 9 of the hearing:

Discussion on exclusion of people due to lack of Aadhaar:

  • Kapil Sibal: Just this morning there is a report about how in old age homes across the country, people are being denied pension because of Aadhaar. This is the reality of India.
  • Sikri, J:  Government has claimed that 1.2 billion people have been enrolled, which means that only ten crores are left. If there are so many problems, how have so many people been enrolled?
  • Kapil Sibal: There is a difference between getting enrolled and having to authenticate each time.
  • Bhushan, J: These kinds of problems may not be a ground for holding a statute unconstitutional.
  • Kapil Sibal: The point is exclusion.
  • Chandrachud, J: Exclusion may be because of infrastructure problems or it might be irremediable, like because of old age. On the first point, government may upgrade.
  • Kapil Sibal: The question is that if you’re going to upgrade, what happens in the meantime.
  • ASG Tushar Mehta: Nobody has been excluded because of lack of Aadhaar.
  • Rakesh Dwivedi (explaining the point made by ASG) : According to Section 7 of the Aadhaar Act, 2016, if there is a problem with authentication, you can just show the card and the number. Circulars have been issued saying that if there is authentication failure, nobody should be denied. Also, as per Sections 4 and 31, if biometric information changes, the Aadhaar holder can ask the UIDAI to update the information. (Also, points to the Regulations that say that residents who are unable to provide biometric information, an exception will be made for them.) Law does not permit any exclusion either at the enrolment stage or at the authentication stage.
  • ASG Tushar Mehta (Reading out a cabinet release that says that provisions have been made to handle exceptions):  arrangements have been made in all blocks and talukas to have alternatives available for exceptional cases.
  • Chandrachud, J: This actually indicates a countrywide problem. And the question is whether until mechanisms are placed, nobody should be excluded.
  • ASG Tushar Mishra: These mechanisms are already in place. 96% of the people are already enrolled.
  • Sikri, J: Many people may not be knowing that there is a provision that you can update your data.
  • ASG Tushar Mehta: Aadhaar is citizen friendly and all problems have been taken care of. Nobody is being excluded for lack of Aadhaar.
  • Kapil Sibal: There are serious problems on the ground, and you can’t answer that simply by reading out the provisions.
  • ASG Tushar Mehta: If biometrics and iris scans fail, you are entitled to produce any alternative ID. There is no question of exclusion.
  • Chandrachud, J: Does the Act provides for situations where authentication fails?
  • Rakesh Dwivedi: Section 7 allows for that. (Kapil Sibal disagrees and points to Section 4(3) of the Act)
  • Chandrachud, J: Section 7 contemplates three possibilities – authentication, proof of enrolment, and proof of application. He says that Section 4(3) only applies to the first situation.
  • Sikri, J: Under Section 7, proof being furnished of having an Aadhaar will be sufficient.
  • Kapil Sibal: On that interpretation, people will refuse to authenticate.
  • Sikri, J: We can interpret the section in this way: if authentication fails, then you can show proof of enrolment.
  • Kapil Sibal: That would amount to adding the word “or” in the section.
  • Chandrachud, J: We can interpret the Act in a way to ensure that there is no exclusion. Authentication is at the heart of the statute.

Discussion on UK biometeric identity project that was scrapped in 2010:

  • The UK Act provided for a national identity register. A regulatory impact assessment claimed that the UK bill would achieve less illegal migration, enhance ability to fight terrorism, and prevent identity fraud for welfare. He says that these are the exact arguments that the government is making today.
  • The UK govt insisted that the bill was to ensure that everyone had one ID, and that it would not erode Civil liberties.
  • The opposition Conservative party opposed it on the ground that it was fundamentally changing the relationship between individual and State.
  • The Conservative Party argued that a central database of information was perilous to civil liberties.
  • UK bill introduced to repeal the act, stated that the national identity card represents the worst of government, it is intrusive and bullying, and does not achieve its objectives. The then Home Secretary and now Prime Minister Theresa May said:

                   “Government is a servant of the people, not the master.”

  • Kapil Sibal: This is a recognition of the pitfalls.

Discussion on Section 7 of the Aadhaar Act, 2016:

  • Kapil Sibal:
    • Sections 3, 4, 8 and 57 of the Aadhaar Act are at the heart of the statute. Under 57, you can extend Aadhaar to all other non-welfare service.
    • Section 7 is not key to the Act. If it was not there, the government could have used Section 57 and achieved the same goal by amending the Food Security Act.
    • Section 7 authorises the government to say that Aadhaar can be the only way to get subsidies.
    • My entitlements should depend on my status, not on my identity. I might be a pensioner with a pension card issued by the government, but the government can still deny me.
    • All proofs of identity, which are otherwise acceptable, are excluded by the Act.
  • Sikri, J:  Those alternative forms are acceptable even at the time of enrolment.
  • Kapil Sibal: Yes, exactly. Acceptable for enrolment but not for identification. What’s the basis for this? Why should anyone know, for example, where and when I open a bank account. The only ground is national security, but there’s no link between Aadhaar and that.
  • Chandrachud, J: The Constitution itself postulates multiple identities. Gender, status, religion. The Aadhaar Act doesn’t speak of identity in that sense. Whether the constitutional sense of a plurality of identities is relevant to identity in the sense that Aadhaar envisions identity?
  • Kapil Sibal: The link is that the Constitution allows me to prove my identity in a way that Aadhaar prohibits me. Article 21 of the Constitution guarantees choice, and Aadhaar takes it away.
  • Chandrachud, J: Could the State not argue that Aadhaar only asks you to prove your person, not your identity?
  • Kapil Sibal:
    • There should be a choice in exactly that.
    • Israel has biometric smart cards. Israeli law allows biometric identification and authentication, and the existence of a database. The database doesn’t include identifying information. The smart ID card allows users to identify themselves for services and benefits if they wish to do so. This last bit shows the voluntary character.
    • Yes, we can have an ID card. But authentication should be optional, data should be on the card, there should be no data, and every citizens should have the right to alternatives.

Kapil Sibal will conclude his submissions on the next date of hearing. The Bench will now hear the matter on next Tuesday.

To read the highlights from Day 8 of the hearing, click here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


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On Day 8, Senior Advocate Kapil Sibal continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of misuse of the Aadhaar Scheme. On Day 7, Senior Advocate Shyam Divan concluded his 6 and a half day long submissions and said

“If this program is allowed to roll on unimpeded, think of the domination the State will have over the individual.”

Below are the highlights from Day 8 of the hearing:

Submissions on misuse of Aadhaar:

  • Kapil Sibal: I am not talking about the State abusing Aadhaar, but how Aadhaar makes everyone vulnerable. He says that vulnerability is where the violation of rights comes in. Why should anyone know where I am flying to?
  • Sikri, J: Most of us our frequent flyers and our flight information is anyway stored by the airlines.
  • Kapil Sibal: But that is only with the airline. It was because of the perils of storage of information that the UK destroyed its national biometric identity program.

Submissions on the technical aspect of Aadhaar: 

  • Kapil Sibal: The first issue is that of centralisation. UIDAI claims it is secure because it is federated. (Cites an RBI report that identified the CIDR as “a single point of attack” and a “single point of failure.”)
  • Chandrachud, J: I agree that theoretically, every centralised database can be hacked. But this is not necessarily a statement of vulnerability, but the acknowledgement that you need to take care.
  • Kapil SIbal: Yes, there need for safeguards that protect the system.
  • Kapil Sibal: Unlike smart cards, most biometric readers in India can be defeated by a child using fevicol and wax. With smart cards, there is no centralised database that can be compromised. Any leakage of biometric data is permanent. If there is no knowledge of when the biometric data is stolen, it will be difficult to trust future transactions.
  • Sikri, J: These days phones have fingerprints and iris authentication.
  • Kapil Sibal: That is only stored on the phone.
  • Sikri, J (Smiling): We understand that distinction.
  • Kapil Sibal (talking about recent Airtel scam involving Airtel payment accounts): UIDAI itself has acknowledged these issues by releasing L0 and L1 security standards, but many machines still don’t meet that standard. In fact, the State Resident Data Hubs have no security of any sort
  • Kapil Sibal (On perils of face recognition):
    • There is an important question of who owns the biometric data, and that there is nothing in the law that defines this.
    • The margin of error increases with the increase in the size of the database. The larger the database, the more the rejections. At 1 billion, it’s 1 in 146 rejections. So basically, the UIDAI will decide who are the ghosts and who aren’t.
  • Kapil Sibal: UIDAI claims that replay attacks will be dealt with like you deal with forged credit cards. He asks “but where will you find the evidence from.”
  • Kapil Sibal: Aadhaar impacts federalism. The exclusions caused due to Aadhaar violates the right to equal treatment. It disproportionately impacts people who are aged, people engaged in manual labour, disabled people, and so on. This is a specific issue with biometrics, as opposed to smart cards. What might be appropriate for fighting crime and terror is inappropriate for the daily interactions between citizen and State. The Aadhaar Act contemplates breaches.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.


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On Day 7 of the Aadhaar hearing, Senior Advocate Shyam Divan summed up his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Shyam Divan picked up from where he left on Day 6 i.e. arguing on the affidavit filed by a fieldworker on the Jharkhand NREGA program recounting starvation deaths that occurred in Jharkhand because of Aadhaar linking failures.

Below are the highlights from Day 7 of the hearing:

Submission on affidavit on exclusion of people with leprosy: 

  • Shyam Divan: The issues here pertain to exclusion, death, and dignity. The reports are about extreme situations. SD says that the basis point is that in a democracy, there has to be an element of choice. There can’t be just one method of identification imposed.
  • Chandrachud, J: One thing the Court needs to look at is the level of internet penetration in the country.
  • Shyam Divan:  The PoS machine has a memory, so if the internet fails, the machine is often taken to another place. All Aadhaar can do is stop a very limited kind of misuse (identity fraud), and there are other ways to weed out leakages.
  • Chandrachud, J: The affidavit seems to show that even after Aadhaar, the citizen remains dependant on the PDS dealer. While that argument may not furnish a constitutional ground, but the argument that Aadhaar itself is causing exclusion nay furnish a ground under Article 14.
  • Shyam Divan: Persons who cannot authenticate are treated as “ghosts”, and as mere statistics. He says this cannot meet the tests under Articles 14, 19, and 21. This is especially so because the system is coercive.

Submission on no option to opt out of Aadhaar scheme:

  • Shyam Divan: This is crucial from an informational self-determination point of view. There must be a right to opt-out. (Reads out affidavits from people who have asked to be able to opt-out, on the ground that there was no genuine informed consent at the time of enrolment and a collective affidavit from Meghalaya from people who want to opt-out of Aadhaar.)
  • Chandrachud, J: What is the position in the North-East?
  • Shyam Divan: There are places where the roll-out is low, and they have been exempted.
  • Shyam Divan reads out the affidavit of Rakesh Mohan Goel, a computer industry expert who went and audited enrolment centres. Below are the findings mentioned in the affidavit:
    • Computer Industry people were retaining biometrics and storing them, and the UIDAI had no way of knowing. 
    • The biometrics of Indians are available to private entities, can be and are being stored in logs.
    • Because of the architecture of Aadhaar, UIDAI has very little control over this.
    • There is no way of knowing, after an audit, whether the storage is continuing or has stopped.
  • Shyam Divan: When you part with something as precious as biometrics, there has to be a fiduciary relationship between you and the person taking it. How can you trust a system like this?
  • Chandrachud, J: How are the authentication machines purchased?
  • Shyam Divan: UIDAI has technical specifications, but the purchase is private. The point is that biometric data is easily compromisable. This is a reason why people do not want to be on Aadhaar, and why they should not be *mandated* to get into the system. While some of these leaks can be plugged, the basic design is faulty. In Surat, the biometric data of ration card holders was stored and then used to siphon off.
  • Shyam Divan (Discussing the mechanism of producing artificial fingerprints): The operator’s fingerprints are cloned. When UIDAI found this out, they added iris authentication. However, the hackers then found a way to bypass that as well. Cloning of fingerprints is easy and it’s possible, and it’s been done. What is the integrity of the system, and why should anyone trust this? This is a question of my right to protect my body and my identity. If the system is so insecure, why am I being mandated to authenticate through fingerprints for every transaction? The more the database expands, given that this is a probabilistic system, the more times you will have a match. This is indicative of exclusion, and that the system is saturated, leading to unjustified rejections.
  • Shyam Divan (Reading out Dr Reetika Khera‘s affidavit, who is an economist at IIT Delhi, and works on the NREGA. It speaks about biometric authentication failure at a tribal school, where those whose fingerprints were not recognised by Aadhaar, were not marked present): Firstly, these are not ghosts in the system. They are flesh and blood girls attending the school, and Aadhaar is not recognising them. Secondly, you’re creating records for an entire lifetime, starting from school. Is this not a surveillance society? Thirdly, there is no statutory sanction.
  • Sikri, J: In fact later, the teachers may be hauled up for inflating numbers.

Submission on whether an individual’s body belongs to her or to the State:

  • The question is, in a digital world, how do I exercise control over my body? In a liberal democratic culture, the basic value is the prohibition of slavery, which means that an individual’s body cannot be used for purposes that she does not endorse.
  • If a person exists in flesh and blood, where is the question of denying her anything? This is at the core of Article 21 and the relationship between the individual and the State. In a liberal democratic culture, can the State say that “I will choose to recognise you only in this manner, otherwise you cease to exist”?
  • There is no concept of eminent domain as far as the body is concerned. The body cannot be used as a marker for every service.
  • The State has a legitimate interest in identifying a person, and so there could be a set of limited, narrowly tailored circumstances where you are required to give up fingerprints, such as for a passport or a driving license or a criminal investigation.

Summary of Shyam Divan’s arguments: 

  • Personal autonomy: Are we going to cede complete control of the body to the State? In a digital world, personal autonomy extends to protecting biometrics.
  • Constitutional trust: We have created the State, and now the State trusts us as unworthy unless we cede our biometerics. The Aadhaar program treats the entire nation as presumptively criminal.
  • Rule of law: Look at how this project has been rolled out.
  • Surveillance and privacy
  • Domination of State:  If this program is allowed to roll on unimpeded, think of the domination The State will have over the individual.

Senior Advocate Kapil Sibal’s submissions:

  • Kapil Sibal: If the State wants Google to give information, it will have to get a court order. Aadhaar bypasses that safeguard. You have the right to opt-out of Google, FB, Twitter. There is no such right with respect to Aadhaar.
  • Chandrachud, J: This distinction may not be persuasive, because in today’s world, you have only notional consent even with respect to private players.
  • Kapil Sibal: There is an important distinction between the State and Google. There are open source alternatives to Google. And even within Google, I have choices and control. There is also a further qualitative distinction. Google uses your data and that often increases your choice. Aadhaar restricts it.
  • Kapil Sibal: How can Aadhaar Act, 2016 be a money bill?
  • Chandrachud, J: That link comes from the Consolidated Fund of India. (P. Chidambaram to argue on this point later)
  • Kapil Sibal (On deactivation of Aadhaar): Consider what will happen in the time that your Aadhaar is deactivated, and you’re trying to rectify it. This is unimplementable in a polity as large as ours. Think of how this will play out in rural India. He points to the regulation that allows deactivation for “any other reason deemed appropriate.” What kind of power is this? This is the power to cause civil and digital death.”
  • Chandrachud, J: You can’t judge the validity of an act by the potential for abuse.
  • Kapil Sibal: This is about how much power you are giving up to the State. In the information age, it’s not merely about “possibility” any more. It exists. (Reads out an article in the newspaper today that talks about digital payments being pushed to 1 trillion dollars in five years.)
  • Chandrachud, J: How does the Court decide what level of risk is proper or not? Should the Court get into this or should it be left to the legislature?
  • Kapil Sibal: I am not saying that the State will misuse it. But the information is in the public domain.
  • Sikri, J: What information will the bank have when you link your Aadhaar?
  • Kapil Sibal: Aadhaar has been used for banking frauds. Different principles need to be evolved in dealing with digital issues. The principles used to adjudicate other statutes don’t map with accuracy.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5 and Day 6 of the hearing.


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On Day 6 of the Aadhaar hearing, Senior Advocate Shyam Divan continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. When Shyam Divan argued on the point of centralisation, a discussion took place between the Bench and Shyam Divan on the issue. Read on to know what all happened on Day 6 of the Hearing:

Discussion on the specific problems with Aadhaar:

  • Chandrachud, J: There are multiple interfaces between individual and State such as tax, electricity bills etc. Suppose instead of Aadhaar you are required to use a PAN card. How would that be different? Your argument seems to be a problem with centralisation. Is it the centralisation that what makes it unconstitutional? Because every time I use a device with an IP, say to book an Uber, my location can be tracked. What is the specific additional problem with Aadhaar?
  • Shyam Divan: The first problem as you have correctly pointed out is centralisation. Normally, you have information silos.
  • Chandrachud, J: But they are all tracking your location, that is a common denominator.
  • Shyam Divan: This is where the ECHR judgment in Digital Rights judgment comes in. They said “you cannot *maintain* logs.” Why? Because it is one thing if a particular utility provider knows about your location. But what happens with centralisation is you have complete tracking. In the present regime that allows tracking of IP + ID. Look at the situation 25 years from now. If we fail in this case, 25 years from now we will be addressing “Aadhaar judges.” Because there is a full log. Right now – schools and scholarships. They are planning for airports as well. At this point you have multiple IDs. Take the PAN card example. You give one ID, you are identified, you avail your benefit. There is satisfaction with respect to the authority, and there’s no question of surveillance. I’m not saying that somebody is sitting behind the screen and watching. It’s about the architecture of the program and this is why it’s never been under proper scrutiny. No other free liberal society in the world has tried this because it simple wouldn’t pass muster.
  • Chandrachud, J: What if someone else like a bank offered to make all your transactions for you and you set standing instructions, like for insurance payments, bill payments, car instalments etc. What is the qualitative difference? My bank maintains a central repository of all my transactions. We’re constantly entering into a world of surrendering our identity – it may be a choice but it’s still a central database. If we’re willing to surrender our identity, then does the fact that the State is collecting information make a difference? would it be satisfactory if there were norms governing collection and use?
  • Shyam Divan:
    • This is not a question of checks and balances, because the architecture is that of pervasive surveillance. I am alive to the concern that you cannot go back to the pre-digital age, and this is not what I am suggesting.
    • Aadhaar is premised on the assumption that we are a nation of knaves. This represents a complete breakdown of trust, because the presumption is that if you don’t have Aadhaar, then you’re a crook.
    • An individual is entitled to develop her personality without being tracked and registered. In a liberal democracy, routine everyday transactions cannot be made conditional on a barter of your biometric information.
    • Elements of Limited Government:
      • An element of limited government is that it is a shared enterprise between the people and the government.
      • Another element of limited government is autonomy and the idea of space – the idea that I can do something without the State necessarily knowing.
      • A final element of limited government is the idea of giving citizens a choice in establishing an identity.
    • State has advanced two justifications – giving people an identity, and savings. Both these claims are undermined by the State’s own documents.
      • Identity:
        • Introducer System:
          • Aadhaar enrolment system requires a pre-existing identity, and if you don’t have it, then an Introducer is required. According to government statistics, the number of people who used the Introducer system is 0.03% (a little over 2 lakhs). Consequently, the question is that can such small numbers justify such a vast an invasive system. We are not saying that identity is not important for the small number who didn’t have it, but the point is whether it is justified to resort to Aadhaar.
          • We are only pointing out that one of the State’s core justifications for this project is not borne out by the facts. (When Bhushan, J said that numbers will not make a difference either way.)
        • Types of malpractices:
          • The first is that you fake your data and claim to be eligible when you’re not.
          • Second, quantity fraud.
          • Third, identity fraud: Aadhaar can at best only deal with the third type of fraud.
      • Savings:
        • World Bank Claim:
          • The World Bank has estimated a saving of 11 billion dollars per annum. Union has relied on this. Union of India has said that the World Bank is independent and will not indulge in puffery.
          • Recently Paul Romer resigned from the World Bank citing no integrity in the data. This is one excellent example. There is some dispute over what exactly the pleadings were with respect to the issue of puffery.
          • The State’s claims are based on the enrolment percentages, which amount to puffery, because enrolment has been not limited to citizens, and there has been no oversight.
          • The World Bank claim footnoted a 2011 article which made no such claims. That article used the 11 billion figure to talk about transfers from five schemes, and talked only about the value of the transfers. Therefore, the World Bank claim stands discredited. The figure was the total disbursement. There was no mention of savings.
          • Maybe the World Bank didn’t know, but the government official who signed the affidavit surely should have known that this figure is wrong.
        • MGNREGA:
          • The Union has claimed DBT benefits and Aadhaar savings as 11741 crores. UIDAI records show that the 74 lakhs NREGA job cards were seeded with Aadhaar, out of which out 67000 were found to be bogus. These were all in Tripura. A Lok Sabha question was asked, where the figure given was 63000. Aadhaar, therefore, eliminated 63000. The maximum savings this would yield is 127 crores. This is less than 5% of the claimed saving of 3000 crores.
          • In an RTI questions were asked about the scale of savings and the method. No specific methodology was provided. It was just said that savings are in terms of efficiency and reducing delay. Nothing about fraud. In another year 93000 job cards were canceled, but many far reasons other than them being fake. In an RTI reply it was found that the number of cards canceled for being fake were 1%.
        • LPG Subsidies:
          • The LPG linking began as a pilot in 2014. The figures given in UIDAI affidavit is 14000 crores of savings. However, cabinet secretariat minutes show an annual subsidy saving of 91 crores. Compare 14000 with 91. What happened was that long before Aadhaar, the NIC came up with a scheme to weed out duplicates. The savings occurred long before Aadhaar.
          • The CAG report is specifically with respect to the implementation of the LPG linking scheme, and the CAG has specifically said that you cannot attribute the savings to the Aadhaar linking, because the savings come from the NIC’s earlier program to weed out duplicates. In fact, the CAG specifically said that part of the savings is because of people not linking Aadhaar. This actually points to exclusion. So what really is the scale of the savings then?
        • Starvation deaths because of Aadhaar Linking Failures:
          • An affidavit by a fieldworker on the Jharkhand NREGA program recounts starvation deaths that occurred in Jharkhand because of Aadhaar linking failures.
          • The affidavit recounts the testimonies of family members who said that individuals gradually starved to death because they were dependent on their grain entitlement, which in turn was linked to Aadhaar.
          • It recounts villagers” testimony about ration dealers tampering with the Aadhaar grain records to hide leakages.
          • It recounts testimony about pension not being credited because Aadhaar was linked to more than one account, and the pension was sent elsewhere. The bank manager said that it was a technical glitch.

Shyam Divan will conclude his arguments on the next date of hearing and the case will be taken forward by other counsel for the petitioners. Bench will continue the hearing on next Tuesday 06.02.2018.

On Day 5 of the hearing, there was a detailed discussion between Bench and Shyam Divan on the issue of surveillance.

Also read the highlights from Day 1Day 2, Day 3 and Day 4 of the hearing.


Case Briefs

On Day 5 of the Aadhaar hearing, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, heard submissions of Senior Advocate Shyam Divan who continued to argue on the issue of India becoming a complete surveillance state and that Aadhaar Scheme should be done with to prevent the situation where ‘Big Brother’ is watching the people at all times. Below are the highlights of Day 5 of the Aadhaar Hearing:

Discussion on Surveillance by Senior Advocate Shyam Divan:

  • European Court of Human Rights judgments discussed wherein it was held that the data should not be stored for any longer than necessary for the purpose. The interests of the data subjects and the community might be outweighed by the interest in prevention of crime, but a Court must scrutinize it carefully.
  • UIDAI’s counter-affidavit discussed in detail. The points highlighted by Shyam Divan are:
    • “By design the technology architecture of UIDAI precludes the possibility of tracking. The system is blind to the use at the front end.”
    • “neither UIDAI nor any agency or department will be able to use Aadhaar to track or surveil. A user department of the govt or agency will only have information pertaining to its own domain. There will be no 360 degree view of an individual.”
  • Shyam Divan argued that the UIDAI has not dealt with the particulars of the affidavits filed by Kelekar and D’Souza, which specified how tracking can be done. Right from 2012, UIDAI had encouraged the establishment of State Resident Data Hubs, and there was budgetary allocation, for various State Governments.

Discussion on State Resident Data Hubs

  • He goes through the SRDH website of Madhya Pradesh and states that MP says that this will be the “single source of truth as it maintains demographic and biometric information.” So biometrics are not only with the CIDR. He also points the authorisation of seeding and reverse seeding.
  • The whole point is to store and integrate information for a 360 degree view, which is what UIDAI specifically denied on Affidavit. He shows a diagram of the 360 degree view.
  • Chandrachud, J: The diagrams show that there is a general database for the disbursement of social welfare benefits. 360 degree view may be a catchword used by consultants. In Europe you don’t have this kind of State involvement in social welfare benefits. If the government is confining itself to social welfare benefits, and checking if people receiving benefits are alive or not, and not profiling political beliefs, can’t it have a legitimate concern in ensuring that the identity of beneficiaries is maintained.
  • Shyam Divan: Concern cannot justify aggregation.
  • Chandrachud, J: Savings due to weeding out ineligible beneficiaries is what concerning the Court. The Court will have to strike a balance.
  • Shyam Divan: On the SRDH you get citizens names, location, and Aadhaar numbers. In our country, you can judge people’s communities from their names. You know all this because of Aadhaar, because the information is aggregated. You are all students of history and can anticipate the future, you know what happens when the names and location of communities in this fashion are available.
  • Khanwilkar, J: It only shows the place where you are generally resident, not resident at that particular moment.
  • Shyam Divan summarising submissions on State Resident Data Hubs:
    • They have no authority of law. These operations result in profiling and require to be removed.
    • The collation of data in state hubs enables religious, caste-based and community profiling, and potential targeting of individuals, and a pervasive loss of privacy.
    • As held in the privacy judgment, aggregation of data results in the destruction of privacy rights. There is a grave danger in allowing the State to amass this much power.

Discussions on unique device ID (UID):

  • Kerala Dairy Farmer Welfare board, which has a pension scheme connected to Aadhaar, has columns that include Log ID, Aadhaar Number, Validation Success (Y/N, biometric mismatch), Client IP (approximately a range of two kilometer radius can be located), request date, unique device ID (which takes you within 200 – 500m of where it is registered), UBC ID.
  • This shows you that “X” person has tried to secure an authentication from these IPs on different dates, and each time she failed. Another person “Y”, has also made three attempts, which failed. This is what UID knows. Name, number, whether it failed and reason for failure and it knows where you are located within 200 – 500 m in real time. This number has been mapped onto GoogleMaps. On these three different days, X has traveled to different parts of Kerala, trying to get authenticated. We are able to locate the dates on which she has traveled, and the time of authentication.
  • This is real-time mass surveillance being carried on by the states, and can’t be allowed.
  • Chandrachud, J: The Dairy Board may be concerned about some poor man trying to get his pension, and following it up to ensure targeted delivery. There is no surveillance in making sure that somebody gets their pension. When you have your iPhone in your pocket you can be tracked.
  • Bhushan, J: How can you have surveillance just by knowing this information?
  • Shyam Divan: Mass surveillance means that whenever an authentication takes place you can locate wherever the person is.
  • Bhushan, J: When you use ATM card, you can be tracked.
  • Shyam Divan: In the case of the ATM, only the bank knows. Under Aadhaar, you have 139 different schemes, and S. 57 allows for more – a full electronic trail from morning to evening. This would be the envy of North Korea.
  • Chandrachud, J: It is also the envy of the World Bank and The Economist. This Dairy Board example is an example of the positives of Aadhaar, because it allows for targeted delivery, and has been praised by the World Bank.
  • CJI Misra: Mr Divan is saying that the shadow is becoming larger than the man, and that man is being deprived of his solitary splendour.
  • Chandrachud, J: One should not get carried away with the rhetoric of surveillance, and everyone must come to the brass tacks.
  • Shyam Divan: Surveillance is at the core of this case. The meaning of surveillance is the tracking of citizens across the day and across their lifetimes. This is not just about the Kerala Dairy Board, but about how that is a microcosm of the program as a whole. The point is about concentration of power that is enabled through the ability to carry out surveillance. The point is not whether someone is actually sitting and tracking you, but the fact that the program enables an architecture of surveillance. If the word “surveillance” is a problem, the word “invasiveness” will also suffice.

Discussion on limited government, constitutionalism and the rule of law:

  • Limited government:
    • It stems from the preamble and the values underlying the Constitution. The State, which is created by the people, cannot expand to a point where it acquires such a huge dominance over the people.
    • The second point is about the space a person has to live.
    • Can limited government require you to identify yourself in only one manner, and that manner requires you to part with biometrics? Can the State say you must identify yourself in this one manner, or I won’t recognise you any more?
  • Dignity:
    • This program violates both individual and collective dignity. Can all these rights that we have be made conditional on forced authentication through only one method?
  • Good governance and rule of law:
    • For seven years this program functioned under administrative notification that didn’t even mention biometrics.

Bench will continue to hear the submissions today.

Also read the highlights from Day 1Day 2, Day 3 and Day 4 of the hearing.


Hot Off The PressNews

On Day 4 of the Aadhaar hearing, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, heard submissions of Senior Advocate Shyam Divan who continued with discussing the various provisions of the Aadhaar Act, 2016. On Day 3 of the hearing, Shyam Divan had discussed the scope and applicability of the 9-judge bench Privacy verdict on the Aadhaar issue and was taking the Court through various provisions of the Aadhaar Act, 2016 when the Bench rose for the day. Below are the highlights from Day 4 of the hearing:

Discussion on Section 59 of the Aadhaar Act, 2016:

  • Shyam DivanSection 59 of the Aadhaar Act, which validates all acts of the UIDAI prior to the Act, applies only to central government actions, as per its text. This section does not control acts of private entities, like enrolment agencies. Their actions are not protected.
  • Sikri, J: Central Government appointed UIDAI in the pre-Act era, and all the acts flow from that.
  • Shyam Divan: The notification establishing the UIDAI might protect the actions of the Central Government in entering into the MoU, but doesn’t cover the actions of the registrars.
  • Chandrachud, J: Actions of the registrars are traced back to the MoU.
  • Shyam Divan: Enrollment agencies are not covered even under the MoUs. As for the Registrars, there actions are not the actions of the central government. Therefore, the enrollment prior to the Act are not validated by Section 59. In any case, you cannot have a retrospective validation of a fundamental right violation.
  • Chandrachud, J: Privacy judgment says that there must be a basis in law. Section 59 attempts to provide that by bringing about a legal fiction. It will have to be considered how you deal with data breaches prior to the Act.
  • Shyam Divan: Informed consent is crucial, and you can’t have a retrospective validation saying that there was always consent, prior to the Act. Even if this provision is to be upheld, it should be given the narrowest reasonable construction.

Heads of challenge to the Aadhaar Act as specified and explained by Shyam Divan :

  • Surveillance: 
    • The State is empowered to collect records over the course of an individual’s lifetime. On the basis of aggregation, over time, the State acquires a profile of an individual, a community, a segment of society. The Constitution does not permit a surveillance State.
    • Every electronic device linked to the internet has a unique number. In addition when the device is linked to CIDR, the devices exchange information.The device is assigned a number qua Aadhaar. A specific ID at the first interaction. Thereafter, the transmission will be recognised as emanating from that device.
    • A unique electronic path attaches to each transmission. This identifies the links through which the transmission is done. Each link is identifiable. It is technically possible to track every transaction. It is possible to track the location of every device in real time.
    • Discussion between Chandrachud, J and Shyam Divan:
      • Chandrachud, J: To what extent the Court can go into questions of technical evidence? There is also a distinction between the existence of a mechanism and its abuse. If the distinction between fingerprints on your iPhone and Aadhaar is only if degree. Should the Court second-guess the decision of the executive government, especially when no system in the world is secure?
      • Shyam Divan: These affidavits confirm that there is a complete mapping of the electronic path, which happens in real time, and that you can track the location.
      • Chandrachud, J: Aren’t we accepting Google Maps tracking us, and other private corporations?
      • Shyam Divan: When you are tracked by the State in real time, it is tantamount to a police State. The Constitution does not allow this. Google is not the Indian State, and the issue is one of consent.  Google, powerful though it is, is not as powerful as the State.
      • Chandrachud, J: I should have no objections to the State knowing whether I’m paying my taxes. So there should be a distinction between collecting data and using it. If the use of data is limited to its purpose, then what is the problem with collection. We live in times of terrorism and money laundering and welfare expenditure, and this has to be balanced. Surveillance is about how data is used, not collected.
      • Senior Advocate Kapil Sibal: The problem is of giving the State that kind of information. ‘Big brother’ will have the information. He may use it and you won’t know it. By the time you do, he will become a bigger brother.
      • Shyam Divan: The point of this whole case is to prevent that situation where ‘Big Brother’ is watching.
  • Violation of Privacy: Between 2010 and 2016, there was no law authorising the violation of privacy. Even after the Aadhaar Act, the violation continues. The citizen is compelled to report her activities to the State through the electronic footprint. Even for availing of subsidies, an alternative means of identification should be allowed. In a digital society, an individual has the right to protect herself by maintaining control over personal information
  • Limited Government: Constitution is not about the power of the State but about limits to that power. Aadhaar allows the State to dominate the individual through an architecture that enables profiling, and by the power to cause civil death by deactivating Aadhaar. Instead of the State being transparent to the individual, the individual is made transparent to the State.
  • Aadhaar Act being passed as a Money Bill
  • Violation of Articles 14 and 21 of the Constitution:
    • There is no informed consent. There is no opt-out option. UIDAI has no direct relationship with the collecting agencies. The data collected and stored lacks integrity.
    • Biometrics are untested, and probabilistic. The use of biometrics has led to exclusion from welfare schemes. If biometrics don’t work, then a flesh and blood individual ceases to exist. If your biometrics don’t match, you become a ghost. A citizen in a democratic society has the right and choice to identify herself in a reasonable manner. Mandating a single highly intrusive form of identity is inconsistent with democracy.
    • Authentication records include the time of authentication and the requesting entity. This can be stored for 2 + 5 years. This enables real-time surveillance.
    • Information about the specific details of the CIDR is not in the public domain because of natural security concerns. (Answering Chandrachud, J’s question as to who maintains the CIDR)
    • Private enrollment agencies cannot be entrusted with the crucial task of ensuring informed consent.
    • Definition of “resident” is arbitrary and has no verification magazine.
    • The individual has a right to remain free of monitoring as long as they have not violated any criminal law.
    • On cancellation of Aadhaar, the services will be disabled personally. You can just switch off a person.

The bench will now continue the hearing on 30.01.2018.

Also read the highlights from Day 1, Day 2 and Day 3 of the hearing.


Case Briefs

On Day 3 of the Aadhaar hearing Senior Advocate Shyam Divan continued with his arguments based on 9-judge bench Privacy judgment before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Below are the highlights from the hearing:

Arguments advanced by Senior Advocate Shyam Divan, appearing for petitioners:

  • It is impossible to visualise in advance all the possible harms that can result from proliferating data sets. (Reading from Privacy Judgment)
  • Privacy is the constitutive core of human dignity and the foundation of ordered liberty. It recognises the individual’s right to control vital aspects of their life. It is not lost or surrendered merely by being in a public place.
  • The Privacy judgment affirms that privacy has always been a fundamental right, and the correct position has been established by a number of judgment after Kharak Singh v. State of U.P.
  • 8 takeaways from Privacy Judgment relevant in the context of Aadhaar matter:
    • Privacy is a natural right, a condition precedent to the enjoyment of any other fundamental right, it includes the right to control the dissemination of information.
    • The sanctity of privacy lies in its relationship with dignity. Privacy is a postulate of human dignity itself.
    • Privacy is integral to liberty and freedom.
    • Privacy has both negative and positive components. In its negative concept, it protects the individual from the State. In its positive aspect, it casts an obligation upon the State to protect individuals from non-State actors.
    • Privacy is not an elitist concept. The subordination of civil and political rights to econmic and social rights has been used for some of the most egregious violations in history.
    • Information in silos, when aggregated, can be a threat to freedom.
    • Privacy can be restricted only by a law that is just, fair, and reasonable.
    • Rule of law and the necessity of judicial remedies.
  • Discussion on provisions of Aadhaar Act, 2016:
    • Section 3 talks about enrolment wherein words used are “shall be entitled to obtain.” “Consequently, getting an Aadhaar number is a right, not an obligation.” The concept of informed consent, which is reflected by the counseling requirement, will become completely illusory if the mandatory character of Aadhaar is upheld.
    • Section 4‘s enrolment procedure is completely compromised and has no oversight. Under Section 4(3), the data can be used as proof of identity for any purpose.
    • Section 6 provides for updation of data as “biometric information changes over time.” This compromises the whole idea of uniqueness.
    • Section 7 effectively allows Aadhaar to be made mandatory for receipt of benefits or services. This provision negates the right of the individual to identify herself in a reasonable alternative manner.
    • Section 23 lays out the powers and functions of the UIDAI.
      • UIDAI has been given vast powers, for example, to add to the biometric indicators (such as DNA), under regulations. It is allowed to contract out the security of the database. This raises security concerns, and has been documented and shown in the record.
      • UIDAI has the power to deactivate an Aadhaar number. This is effectively a power to deprive an individual of all Civil rights.
      • UIDAI is allowed to enter into memoranda of understanding with other bodies, public and private.
    • Section 32 talks about the Aadhaar Enrolment Regulations, which provide for storage of metadata. It’s not that somebody is sitting and tracking you. The point is that the architecture is what enables a surveillance State.
    • Section 47 says that individual has no right to complain in case of a violation of the Act, and only the UIDAI has that power.
    • Section 48 allows the government to take over control of the entire record by citing a public emergency.
    • Section 51 allows for delegation.
    • Section 53 gives power to make rules and regulations.
    • Section 57 allows the use of Aadhaar to establish identity for any other purpose.

Questions asked by the Bench:

  • Chandrachud, J: There are two claims. First, that the program is unconstitutional. And secondly that there have been breaches that need to be plugged. Will you be will be making both arguments?
  • Shyam Divan: The key question is whether an individual is entitled to protect herself by making a choice about which method to use to identify herself. The breaches help to substantiate the strength of this basic claim i.e. the claim to make a choice. The concern is that you will end up having a complete surveillance society of this system in its present form is allowed to stand.
  • Chandrachud, J: Can’t you obviate the problem of aggregation of data sets by specifying in law that data can be used only for the purpose that it is collected?
  • Shyam Divan: There is a crucial distinction between private parties and the State. With private parties I can opt out.
  • Chandrachud, J: To what extent do you have an actual choice in today’s world, even with respect to data shared with private parties?
  • Shyam Divan: The point is that the State has for more power with respect to an individual.
  • Sikri, J: To what extent can Aadhaar be used?
  • Shyam Divan: In a democracy, there has to be a certain amount of trust between State and individual. So if an individual says that she has an alternative way of identifying herself, the State needs to accord that basic trust and respect and allow it, as long a that alternative is reasonable. This is especially so because biometrics are probabilistic.
  • Sikri, J: What is the harm if you’re just giving the number and nothing else, no biometrics?
  • Shyam Divan: You may not want to have this information spread around. The number when used with other information publicly available can be compromising.
  • Chandrachud, J: Biometric information remains only with the CIDR.
  • Shyam Divan: This is not so. (Gives example of fingerprints being skimmed off)

Bench will continue the hearing tomorrow.

To read the highlights from Day 1 and Day 2 of the hearing, click here and here.

Also, read the background of the Aadhaar matter here.


Case Briefs

On Day 2 of the Aadhaar hearing Senior Advocate Shyam Divan continued with his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Below are the highlights from the hearing:

Arguments advanced by Senior Advocate Shyam Divan, appearing for petitioners:

  • There are three problems: the integrity of the process, the integrity of the information, and a pervasive violation of fundamental rights.
  • There is nothing in the Aadhaar Enrollment form that discloses that it is voluntary. Just as with the resolution constituting UIDAI, there is no mention of biometrics. Also, there is no declaration or verification. All this speaks to the lack of integrity of the process. There is nothing in the form that shows the basis on which its information has been gathered. There is neither any signature nor any method of counselling. Where is the informed consent?
  • In a welfare state, can the State roll back rights and announce a barter system: that you only have rights if you give your fingerprints and subject to being tracked for the rest of your life.
  • The point about the integrity of the process is substantiated by a Rajya Sabha statement that in six years, 34000 operators were blacklisted. These operators tried to pollute the system or make fake Aadhaar cards.
  • UIDIA Orgaisational hierarchy explained:
    • Registrars have been empowered to collect demographic and biometric data, as well as KYR+ information. They are are empowered to retain the data, subject to fiduciary responsibilities. Registrars can be private bodies as well. (Upon being asked by Chandrachud, J whether registrars can only be government agencies)
    • The verifier is supposed to be appointed by the registrars and verify enrollment documents. It is recommended to use government officials for this.
    • The person interacting with the resident is the “Operator.” An operator is employed by the enrolment agencies to carry out enrolment. He must be 18 years and above, +2 pass, and comfortable with computers.
  • This is the palpable lack of integrity in this project for all these years. This denuded the rule of law and erodes governance. That is why you now have a situation where 34000 operators have been blacklisted.
  • In a digitalised world, the government has to be an ally of citizens, not its adversary. The State must ensure that privacy interests are protected. (Referring to the Privacy judgement)

When the Bench rose for the day, Shyam Divan was discussing the Privacy judgement and it’s implications on the present matter.The Court will continue the hearing on 23.01.2018.

To read the highlights from Day 1 of the hearing, click here.


Hot Off The PressNews

Supreme Court: The much awaited Aadhaar hearing began today before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, and below are the highlights from Day 1 of the hearing:

Arguments advanced by Senior Advocate Shyam Divan, appearing for petitioners:

  • Aadhaar Project and the Aadhaar Act, 2016, are being challenged separately as the statute covers part of the project, but not all of it.
  • Inalienable and natural rights have been made dependent upon compulsorily acqiring an Aadhaar number.
  • If the Aadhaar Act is upheld, then in the alternative, no citizen should be deprived of any right or benefit for the lack of an Aadhaar card.
  • In 2012, many citizens filed PILs against the Aadhaar scheme. In 2013, a two judge bench referred the matter for final hearing, and made it clear that nobody should suffer from lack of an Aadhaar card. In 2014, UIDAI itself filed a petition against a Bombay HC order that had directed it to disclose biometrics in a criminal case.
  • In the privacy hearing, the State said that these are all elitist concerns. They are not. There are genuine, weighty issues.
  • UIDAI captures all the ten fingerprints of the individual, a facial photograph, and the two irises. They have a template. The template scales the fingerprints. They then pick up, say, hundred distinctive points, called minutae. The UIDAI then sets a number – how many of those hundred points should match? If the number is set at 100/100, it will never work. So UIDAI has to make a value judgment. It can’t be too high, it can’t be too low. So you’re departing from a deterministic system to a probabilistic system. If I have certain rights, then how can my enjoyment of those rights be made probabilistic? (On how the Aadhaar System works)
  • It will become clear as this case goes on that there is almost negligible governmental oversight over this data. In the pre-Act era, there was no mention of biometrics in the legal instruments that governed Aadhaar. Biometric collection was patently illegal, and that illegality was not cured by the passing of the Aadhaar Act.
  • While border control may take your biometrics, it is restricted to that. You’re not required to submit your fingerprints for various transactions throughout the day. (On distinction between pervasive and non-pervasive system authentication system)
  • While at one point UIDAI projected that the purpose of Aadhaar was to give everyone an identity, RTI revealed that the actual number of people for whom Aadhaar was the first ID, was very small.

Background of the ongoing Aadhaar hearing:

The 5-judge bench has sat together for the final hearing of the Aadhaar matter after the 9-judge bench declared right to Privacy as a Fundamental Right. The said Privacy issue that arose during the Aadhaar hearing when the 5-judge bench of J.S. Khehar, Former CJ and J Chelameswar, SA Bobde, DY Chandrachud & S.A. Nazeer, JJ said that in the light of the rulings by the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., holding that Right to Privacy is not a fundamental right, a larger bench needs to determine whether right to privacy is a fundamental right or not, before deciding the validity of the Aadhaar Scheme.

Earlier, a 3-judge bench in K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735 had referred the Aadhaar matter to a larger bench while stating that if the MP Sharma and Kharak Singh cases “are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

On 14.12.2017, the bench had, upon request made by Senior Advocate Shyam Divan, agreed to hear the matter for interim relief after he told the Court that no person should suffer for not having an Aadhaar card, till the case is heard and decided. As a result, on 15.12.2017, the deadline for linking Aadhaar with all the schemes and existing bank accounts was extended from 31st December, 2017 to 31st March 2018. The bench had also clarified that clarified that as far as the provisions of Section 139 AA of the Income Tax Act, 1961 are concerned, the matter stands governed by the judgment of this Court in Binoy Visman v. Union of India2017 SCC OnLine SC 647.


Case BriefsSupreme Court

Supreme Court: Passing interim order in the most talked about Aadhaar linkage matter, the 5-judge Constitution Bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ accepted the Central Government’s submission of extending the deadline for linking Aadhaar with all the schemes and existing bank accounts to 31st March 2018.

Senior Advocate Shyam Divan, appearing for the petitioners, had brought before the Court’s notice that the interim order of the Constitution Bench dated 15.10.2015, wherein it was directed that

  • Aadhaar Cards could permissibly be utilized only for six schemes
  • the Union Government was directed to strictly follow the earlier orders of this Court commencing from 23 September 2013; and
  • the Aadhaar card scheme was to be purely voluntary and could not be made mandatory until the matter is finally decided by this Court.

He, hence, argued:

“since the interim order governs the field it was the obligation of the Union government to seek a variation of the interim directions after the enactment of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 before making it mandatory to uplink or provide details of the Unique Identification Number/Aadhaar card for all purposes.”

Attorney General KK Venugopal, on the other hand, submitted:

“the interim directions were issued in the absence of a legislative framework. After Parliament has enacted the Aadhaar Act, 2016, the interim orders would not pose any impediment to enforcing the provisions of the law, duly enacted. Moreover, the reasonableness of each notification would have to be justified by the department concerned.”

Regarding new bank accounts, Attorney General submitted that while the last date for completing the process of Aadhaar linking may be extended until 31 March 2018, persons desirous to open new accounts shall produce proof to the bank of an application having been submitted for obtaining an Aadhaar card together with the application number which shall be supplied to the account opening bank. The Court accepted the said submission.

Regarding Aadhaar based E-KYC for mobile phone subscribers, the Court extended the date for the completion of the E-KYC process in respect of mobile phone subscribers until 31 March 2018. The original deadline for the same was 6 February 2018.

The Bench also clarified that as far as the provisions of Section 139 AA of the Income Tax Act, 1961 are concerned, the matter stands governed by the judgment of this Court in Binoy Visman v. Union of India, 2017 SCC OnLine SC 647.

Stating that the order will continue to operate pending the disposal of the proceedings before the Constitution Bench, the Court listed the entire batch of Aadhaar petitions for final hearing on January 17, 2018. [Justice K S Puttaswamy v. Union of India, 2017 SCC OnLine SC 1462, order dated 15.12.2017]