Aadhaar Hearing [Day 5]: Detailed discussion between Bench and Shyam Divan on the issue of surveillance

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.

Source: twitter.com/gautambhatia88

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