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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.

Source: twitter.com/gautambhatia88

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Supreme Court: The 5-judge Constitution Bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY CHandrachud and Ashok Bhushan, after hearing the counsels at length, said that it will pronounce the interim order on the issue of linking Aadhaar Number to Bank Accounts, Mobile Numbers, etc, tomorrow.

Senior Advocate Shyam Divan brought all the interim orders to the Court’s notice that said that no person should suffer for not having an Aadhaar card, till the case is heard and decided. He also brought to the Court’s notice that the Government had made the Aadhaar mandatory for 139 schemes including rehabilitation of bonded labour, mid-day meals for children, school admissions, scholarships, etc. He said:

“if people are being deprived of retroviral treatment because they don’t have an Aadhaar, it is a sad day for the country.”

Attorney General KK Venugopal, on the other hand, said that the arguments advanced Shyam Divan were not in the pleadings. He also said that in the Aadhaar/PAN judgement it has already been held that the earlier orders have been overridden by an Act.

Senior Advocate Gopal Subramanium submitted before the Court:

“This Court has exercised judicial power in favour of citizens, to insulate them against compulsion, duress, or any form of force through which they would have to part with their personal information. That is the spirit of this Court’s orders. All the orders have one pattern. The reason why this Court specifically asked the government to comply was because there were numerous violations. There were cases of exclusion. Cases of compulsion. That’s why interim orders were passed.”

Stating that  Central Government has passed 139 notifications under Section 7 of the Aadhaar Act, 2016, he asked whether Section 7 can authorise a compulsion contrary to the orders of the Court.

Adding to argument, Senior Advocate Arvind Datar said even if it was assumed that Aadhaar can be made compulsory under Section 7, it can only be done for services paid for by the Consolidated Fund and that making Aadhaar compulsory for death certificate or exam hall tickets was a ‘clear overreach’.

Examples of data leaks were also presented before the Court and that an RTI has been filed asking about which companies have been given the data but it has not yet been answered.

Attorney General again submitted before the Court that the deadline for linking Aadhaar can be extended to March 31, 2018 except in case of new accounts.

Before rising, CJI said that he will decide whether new bank accounts have to be linked with Aadhaar. The Bench said it will pronounce the interim order tomorrow and that the final hearing in the matter begin from January 17, 2018.

Source: https://twitter.com/gautambhatia88

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Supreme Court: Calling for installation of CCTV cameras in Courts, the bench of AK Goel and UU Lalit, JJ said that there is no need for privacy in courtrooms as nothing private happens there. The bench said:

“Judges don’t need privacy in court proceedings. Nothing private is happening here. We all are sitting in front of you.”

Additional Solicitor General Pinky Anand, appearing for Centre, said that the installation of CCTVs and video recording of court proceedings was important and would be beneficial for all. She submitted before the Court that the Ministry of Law and Justice has to sanction a proposal for financial outlay, which could be accorded any time soon. The Court, hence, asked the Centre to submit the report on the next date of hearing i.e. 23.11.2017. It said that this step was in larger public interest, discipline and security and hence, it should be delayed.

On August 14, the apex court had favoured installation of CCTV cameras with audio recording of all court proceedings, including in its own complex along with those of the high courts and tribunals, to bring in transparency.

Source: PTI

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The 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ since 19.07.2017 and today was the 4th day of hearing. Petitioners had already concluded their arguments on 20.07.2017. Here are the 15 biggest takeaways from the Union and States’ submissions till now:

  1. Senior Advocate Kapil Sibal: Privacy is not an absolute right. Will never be. The Court will have to strike a balance. You should not lay down the law but just to hold the existence of the inalienable inherent right.
  2. Attorney General KK Venugopal: Privacy can be one of the species of personal liberty. This right of privacy consists of a large number of sub-species. All these sub species cannot be elevated to the level of a fundamental right.
  3. Dr. D.Y. Chandrachud, J: If we say privacy is not a Fundamental Right at all it would be a blanket sanction of anything the State can do.
  4. It’s preposterous to state that India will become totalitarian because of Aadhaar. Privacy claims require better priority in developed countries. In a developing country there should be no Fundamental Right to privacy.
  5. Dr. D.Y. Chandrachud, J: Privacy is not an elitist concern and it is equally applicable to the large masses. For example if State wants forced sterilization on slum dwellers for population control among that group, perhaps only privacy claim may stand in the way.
  6. Attorney General KK Venugopal: World Bank has said that something like Aadhaar should be followed by all countries. Article 21 includes right to live with dignity I.e also to basic needs such as food reasonable environment, suitable accommodation etc. An Act passed with those salutary objects cannot be defeated on claims to privacy.
  7. J. Chelameswar, J: There is not data protection n Aadhaar. The moment you put fingerprint whole world has the data access.
  8. Attorney General KK Venugopal: Section 29 of the Act provides for prohibition of disclosure of core biometrics.
  9.  Dr. D.Y. Chandrachud, J: Where is the protection for the mobile number? Why medical history is excluded from definition of demographic info and why they are not protected? There is no robust data protection mechanism.
  10. S.A. Bobde and R.F. Nariman, JJ (To Tushar Mehta appearing for UIDIA) : So you have enacted this to protect privacy! Then why are you disputing the right.
  11. Attorney General KK Venugopal:The very fact that there is an Act passed to protect privacy means there is no Fundamental Rights.
  12. Senior Advocate C.A. Sundaram: There is no unambiguous definition of privacy to be crystallized as a right
  13. CJI and S.A. Bobde, J: Life, liberty and dignity are also not defined but they are all Fundamental Rights.
  14. Senior Advocate C.A. Sundaram: Law is set of rules by which society interacts. There are NDMC rules that compound walls can only be three feet. If privacy becomes Fundamental Right, all cases challenging such laws will come before the Court. Even if the bench were to hold the right, it will have to define it to some extent. Every Government action has an impact on privacy, therefore, a broad constitutional right to privacy must not be laid down.
  15. R.F. Nariman, J: We are going to consider all aspects and give a comprehensive judgment for conceptual clarity for the nation.

Looking for a cheat sheet for petitioners’ submissions? Click here.

Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

Case BriefsHigh Courts

Madras High Court: While deciding upon the petition filed in public interest, praying before the Court to direct the concerned authorities to put an indelible identification mark upon the bodies of blood donors in order to curb the menace of drugs, the Division Bench of S. Nagamuthu and M.V. Muralidharan, JJ., observed that marking individuals who are donating blood, with an indelible identification mark especially in the absence of a legislation mandating the same, amounts to violation of right to privacy under Article 21 of the Constitution.

The petitioner appearing in person contended before the Court that in present times, the students are going astray. They are more into drugs and other intoxicating vices due to being misguided by unscrupulous elements of the society. The petitioner further stated that such misguided students end up becoming drug addicts and one of the sources for these students to spend money for the drugs is by way of donation of blood for which they receive money as consideration and out of the same, they purchase drugs for their consumption. The petitioner argued that putting an identification mark which would sustain for upto 3 months, upon the bodies of the donors will prevent such donors to donate blood for at least 3 months. The petitioner further prayed before the Court to direct the concerned authorities to constitute a special squad whose task will be to spread awareness amongst the youth about the harmful effects of narcotics.

Considering the plea, the Court stated that it would be a violation of fundamental right to privacy if the Court concedes to the arguments of the petitioner and directs the authorities to mark the blood donors. Therefore the Court refused to entertain this particular plea stated in the petition. However agreeing with the concerns raised by the petitioner, the Court observed that the Government sponsored sensitization events regarding the harmful effects of drugs are not enough to address the issue, and the same should be conducted with more intensity in the Colleges by involving psychologists, psychiatrists and the leading personalities of the Society. [M.Krishnaveni v. The Chief Secretary, W.P.(MD).No.1945 of 2016, decided on 02.11.2016]