Case BriefsSupreme Court

Supreme Court: The Bench comprising of R.F. Nariman and Indu Malhotra, JJ. dismissed writ petitions filed by army personnel — Major, Lieutenant, and Sepoy — against their transfer from Army Service Corps. to operational units.

The petitioners challenged the transfer as violative of their fundamental rights under Article 14 and 21. They relied on the Supreme Court decision in Union of India v. P.K. Choudhury, (2016) 4 SCC 236. They submitted that in the case mentioned, the Court held that ASC is a non-operational unit based on the stand taken by Union of India. While the respondent-Union of India and Military Secretary Branch — assailed the maintainability of the petition. Furthermore, it was contended that an employee has no legal right, much less a fundamental right, to be posted in a particular place or to be transferred to a place of his choice.

The Supreme Court gave due consideration to the submissions made by the parties. It referred to the composition of Army to understand the contextual matrix of the case. It was seen that the ASC is a vital stream primarily responsible for ensuring the provisioning, procurement, and distribution of supplies. The Court held that the petitioners had failed to show how their fundamental rights were violated. Posting and transfers are a necessary incident of service. The case of P.K. Choudhury was distinguished as it was concerned only with promotions and not transfer. The petitioners did not make any submission that the posting was in violation of any statutory rule, executive policy or instruction. Furthermore, the Court referred to the Oath administered to all army personnel alike at the time of commissioning the relevant portion of which reads — “I hereby solemnly swear that I will … go wherever ordered, by land, sea or air…”.  The Court thus held that army personnel are duty bound to serve wherever they are ordered to. In view of the above, the petitions were dismissed. [Amod Kumar v.  Union of India, 2018 SCC OnLine SC 1372, decided on 06-09-2018]

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After hearing the much-debated Aadhaar matter for 38 days, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ has reserved the judgment. The hearing had begun on January 17, 2018.

Below are the highlights from the arguments advanced on the last day of the Aadhaar Hearing:

  • Senior Advocate Gopal Subramanium: 
    • Is Aadhaar really affirmative action? Is the act an enabler or is it in the guise of enabler? The act is not an instrumentality to deliver services. It is only a means of identification. We have to read the true purpose of law and whether the law seeks to achieve that purpose. Dignity and autonomy is not preserved by section 7 of the Aadhaar Act.
    • Aadhaar Act does not have a proper purpose. A claim to a proper purpose is not proper purpose. Authentication is at the heart of the Act. Failure of authentication is a ground for denial of services.
  • Chandrachud, J: An act like Aadhaar needs a regulator which is absent.
  • Gopal Subramanium: The state seeks to take away our data without the backing of a strong data protection framework. Words like “grant of subsidies, benefits and services” are expressions of condescension in Section 7. They are not treated like an entitlement. The burden is on the people to authenticate and establish their identity. Should the State logically be the holder of such information?
  • Chandrachud, J: Is “subsidy” a benefit or a right, that has to be decided.
  • Gopal Subramanium: 
    • Private players have access to Aadhaar data. There is no regime of protection. There is no vertical protection.
    • Section 7 has been interpreted to be mandatory. Can’t make citizens subservient under section 7 and call rights, benefits.
    • The Act is to be struck down completely as it fails all three tests laid down in Puttaswamy. There’s no legitimate state aim as the real aim is different from the purported aim. There was no law when Aadhaar was implemented and there’s no proportionality.
    • This Court consciously overruled ADM Jabalpur. The doctrine of possibility of misuse does not apply here because there is actual denial of rights in the case of Aadhaar.
    • Aadhaar Act should be completely struck down and the architecture and database must be destroyed.

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  • Senior Advocate Arvind P. Datar:
    • Aadhaar cannot be a money bill. At most, it can be a financial bill of category 3 under Article 117(3) of the Constitution.
    • Doctrine of severability will not apply to Aadhaar, since the doctrine is only applicable to validly enacted laws.
    • Mohd.Saeed Siddiqui and Yogendra Jaiswal should be overruled. Finality of speaker’s decision doesn’t mean that the bill cannot be subject to judicial review.
    • Under PMLA, Aadhaar is not just confined to banks but has gone beyond it’s scope. Aadhaar is needed for mutual funds, insurance policies and credit cards as well, among other things.
    • Only magic words like black money, national security and terrorism are being thrown around by the State. The justification of a law for proportionality cannot be a ritualistic exercise. Aadhaar is not justified under Article 300A of the Constitution.
    • Linking Aadhaar will never solve problems of money laundering and black money because the source of such money is different. This is colorable exercise of power. Black money and money laundering is being used as a ruse to collect people’s biometrics.
    • Section 57 should go completely. Anything outside Section 7 is completely violative of the Puttaswamy judgement. S.139AA of the income tax act is inconsistent with the Aadhaar Act.
    • There should be an option of opting out of Aadhaar.

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  • Senior Advocate P. Chidambaram:
    • AG’s reading of the word “only” in Article 110(g) is erroneous. There is no need to tamper the language of the Article.
    • Section 57 travels beyond Article 110 of the Constitution. Clause (g) of 110 (1) must be read very restrictively. The provision has to be incidental to (a) to (f) to come under (g). Clause (g) is not a substantive provision.
    • The implications of passing a non money bill as a money bill are very serious: One half of the parliament is virtually disabled from making any amendments. It denudes the highest constitutional authority of the country, the President of India.
    • There is no provision in the Constitution which gives the court the power of severability in case of an invalidly enacted legislation. The Australian constitution has such a provision.
    • The bill was passed without the effective participation of the Rajya Sabha and without assent from the President. The court cannot save a legislation that is fundamentally unconstitutional.
    • Pith and Substance doctrine cannot be applied in cases where the applicability of Article 110 is being interpreted. Only limited to entries of legislative lists.
    • The Court must strike down the Aadhaar Act as it is not a money bill. It is a mockery of Article 110.

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  • Senior Advocate K.V Vishwanathan: 
    • Respondents’ argument that the least intrusive method is not a facet of proportionality is completely erroneous. You can’t balance your own bundle of rights. Balancing Right to food and right to privacy is wrong.
    • Section 59 doesn’t protect Aadhaar during the time it was not an Act. Its a wrong submission made by the state. To rely on the exception handling mechanism is ultra vires the Act.
    • If it’s my rights and their duty, then they cannot discharge their duty by subjecting the poor and downtrodden of this country to a technological menace.
    • There can be no data collection and digitalization of records. The underpinning of the Aadhaar Act is authentication of individuals.
    • Harmonization of rights is being mis-applied by the respondents.

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To read the highlights from the rejoinder submitted by the petitioners, click here and here.

To read the highlights from the submissions of AG KK Venugopal on the issue of money bill, click here.

To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source: twitter.com/SFLCin

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On the penultimate day of the Aadhaar hearing, Senior Advocate Shyam Divan continued with his rejoinder 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 arguments advanced on Day 37 of the Aadhaar Hearing:

  • Shyam Divan:
    • We’re linking Individuals Aadhaar with their bank accounts and mobile numbers without their permission. It’s called inorganic seeding. Without statutory backing UIDAI collected biometrics of hundred crore people which is the entire population of Europe and North America.
    • From the citizens perspective, there’s authentication tower and enrollment tower. IP address, ID, date, time and purpose of authentication can be known because of the architecture of Aadhaar. Source code of the Aadhaar software belongs to foreign companies. It is impossible to live in contemporary India without Aadhaar.
    • Aadhaar linking is not a one time thing. It’s a continuous process.
    • ID4D 2015 report was relied on by the Attorney General KK Venugopal. World bank had partnered with Accenture to write this report. Therefore the report is not impartial.
    • Collecting biometrics was ultra vires the 2009 notification. Assuming the notification was an act of parliament, even then it would’ve been ultra vires for collecting something as intrusive as biometrics. Also there was no informed consent and penalties that time.
    • UIDAI has been flouting the interim orders of the SC. Aadhaar schemes under section 7 should not involve children, merit education. Exclude schemes for rehabilitation and involve stigma like bonded labourers, exclude food and nutrition, matters related to health.
    • There cannot be retrogression of human rights.
    • Sarva shiksha Abhiyan and mid day meal schemes requires children to furnish Aadhaar to avail benefits of these schemes. This should be completely excluded from section 7. There should be no conditions placed on children to avail these benefits.
    • Aadhaar was even required to participate in essay competition. This is way beyond any reasonable limit of proportionality.
    • Highly vulnerable groups should not be mandated to provide Aadhaar. Even Ujjwala scheme for women rescued from trafficking requires Aadhaar.
  • Sikri, J: The problem is that wrong beneficiaries receive such benefits.
  • Shyam Divan:
    • Even tuberculosis patients were mandated to disclose Aadhaar numbers. 
    • Please don’t consider Section 7 by itself but the overall impact of the Act. This is an over extension of the coercive powers of the State. Section 7 beneficiaries are demoted to the status of second class citizens. Aadhaar authentication is a violation of personal autonomy.
    • Also, Aadhaar is probabilistic. Non retrogression of rights is an important principle of human rights law.
    • This act has a huge impact on human rights. Constitution has an intricate scheme to defend part III with the final defence lying with the SC. Cannot bypass wisdom of Rajya Sabha and Article 111 to pass Aadhaar as a money bill.
    • Demographic information in many situations is also important and should not be trivialised. People must have the choice to preserve and protect it.
    • The architecture of Aadhaar with full traceability enables mass surveillance, and profiling. There are a lot of lawyers who are doing this pro Bono because they believe this is a huge constitutional matter. There’s no commercial interest.
    • The Aadhaar Act will not survive the first five words of the preamble, “We the people of India”.

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  • Senior Advocate Gopal Subramanium:
    • State functionaries have a continuing constitutional obligation. If the obligation is not met, it cannot be reversed and the burden of proof cannot be on Individuals to establish their identity.
    • Do children want fake mid day meals? Do poor disabled people want to fake their identity?
    • Section 33 will allow sharing of authentication records. Footprints of ones activities are known by the State. Is there any nexus between such knowledge of the State and delivery of services?
    • You need all the other identity documents like ration cards, along with Aadhaar number. A person can ping the authentication machine three times and get rejected and then get accepted on the fourth ping. How can we subject citizens to this?
    • Is Aadhaar really for the oppressed? Because everyone is now supposed to link it with banks, telecom etc. What exactly is the compelling state interest that has been demonstrated?
    • Admissions to schools is denied for lack of Aadhaar. The legislation is not an enabler, and not used for empowerment. Therefore, it falls on all grounds that is Articles 14, 19 and 21.
    • Data of citizens can be used for political exercise. Aadhaar’s preponderant nature is likely to invade. Aadhaar alters the symbiotic nature between state and citizen.
    • This law is a fetter on self actualization. However noble your intentions maybe, if you step out of the boundaries of the Constitution, then there’s no saving such legislation.

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To read the highlights from the submissions of AG KK Venugopal on the issue of money bill, click here.

To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source: twitter.com/SFLCin

Hot Off The PressNews

On Day 36 of the Aadhaar Hearing, Attorney General KK Venugopal concluded his arguments on the issue of Aadhaar Act, 2016 being introduced as Money Bill before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. It also marked the end of the submissions of the State and the petitioners began rejoinder post lunch.

Below are the highlights from the arguments advanced on Day 36 of the Aadhaar Hearing:

  • Attorney General KK Venugopal: Article 110(1)(g) is a standalone provision. There can be a bill that does not relate to 110(1)(a)-(g) but is still covered independently under 110(1)(g). Therefore, the Aadhaar bill did not have to to be passed by the Rajya Sabha. RS could only make recommendations.
  • CJI: Section 57 is an enabling provision that allows state legislature to introduce Aadhaar for various services. The state legislature may or may not introduce it as a money bill. It’s nature will then be examined if it’s challenged in a court of law.
  • AG (On Aadhaar SIM linking):
    • Aadhaar is not mandatory to obtain a new connection ,but there will be no chance of forgery and fraud if Aadhaar is linked to SIM card.
    • Aadhaar was made optional as per the direction of the Supreme Court but it will only remain optional till the final disposal of the matter. (SC had denied a few days ago that it had issued any direction to make Aadhaar mandatory for sim in the lokniti case)
    • We are recognizing the interim order passed in the Lokniti Foundation case, and hence making Aadhaar optional for the time being.
    • No core biometrics data is shared under the Aadhaar Act.
    • The State takes offense to the fact that words such as “electronic leash” and “concentration camps” were used.

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  • Senior Advocate Shyam Divan (Rejoinder): 
    • First time in a democracy, something like CIDR has been implemented. SC is at the vanguard of balancing human rights and new technologies.
    • Cannot have a surveillance state in this democracy. Identity of the person, date and time, and location are the three elements of surveillance.
    • On March 9, 2018, state filed an affidavit appending an expert report by Manindra Agarwal of IIT kanpur who is also a member of technology and architecture review board of Aadhaar along with the security review board.
    • UIDAI’s presentation report says that biometrics database is accessible by third party vendors like Morpho, Accenture, identity solutions and one more. Breach of verification log leaks location of places where an individual did authentication.
    • The report admits that tracking of location of a person is possible. Prof. Agarwal has admitted that last five years location data can be accessed with the verification log. Even without the verification log, current location can be tracked. UIDAI knows the location of an individual. Third parties can access the approximate location if the verification log is breached.
    • Experts on both sides now agree that surveillance is possible. It’s not just a privacy issue, it’s a limited government issue. How far does the coercive power of the state extend? Cannot extend to creating an infrastructure that is capable of tracking people.
    • Can we have a law or system that sets up an authority that does not comport with our democracy? I’m speaking about a rudimentary level of surveillance. I’m not even talking about commercial surveillance.
    • State has created a structure of not just CIDR but AUAs and KUAs where all information is being tracked including location. In terms of power and control, the existence of a body like UIDAI is beyond my wildest imagination.
    • The Maninder Agarwal affidavit is a tipping point in this case. He’s careful and says that there are laws to protect us. SC cannot permit something so deeply flawed to function in our country.
    • Is this a case of the emperor who had no clothes? On the point of balancing, I would submit that this is an impairment of Part III of the Constitution. This is a moment in time to take a firm stance.
  • Chandrachud, J: There’s an inexorable march of technology. What are the kind of safeguards that we should take while balancing these rights is something we have to consider. Not like there’s quantitative lack of food in our country. The problem is that people can’t access that food. It is the duty of the State to look into this aspect also.
  • Shyam Divan:
    • Choice and option is important in a democracy. (Jokingly says that Mr. Zoheb Hossain also does not have an Aadhaar.)
    • UIDAI in their answer have said that they do not take responsibility for correct/incorrect identification. They only provide a matching system. It’s a self certification/ declaration system. Please consider this in the context of opening and operating bank account.
    • UIDAI takes no responsibility for correct name, address, date of birth Please consider if this meets minimum standard of rationality. UIDAI hasn’t answered how many authentication rejections have taken place. If you’re successful of performing five authentications in a year, it’s considered hundred percent successful.
    • UIDAI was asked if they verify if illegal immigrants are given Aadhaar. As a 2013 SC order said that illegal immigrants should not get Aadhaar.

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To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source: twitter.com/SFLCin

Hot Off The PressNews

On Day 35 of the Aadhaar Hearing, Advocate Zoheb Hossain, appearing for the State of Maharashtra and UIDAI, resumed his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Attorney General KK Venugopal made submissions on Aadhaar Act, 2016 being passed as a Money Bill.

Below are the highlights from the arguments advanced on Day 35 of the Aadhaar Hearing:

  • Advocate Zoheb Hossain:
    •  Data protection law is a positive obligation of the State. All rights give rise to a variety of duties. Aadhaar is a project to ensure socio economic rights of the people.
    • All human rights are equally important, indivisible and are interconnected. Socio economic rights are as important as civil and political rights.
    • a UN General assembly resolution says that ideal of freedom can only be achieved if conditions are created so that everyone can enjoy socio economic and civil political rights.
    • To judge proportionality, reasonableness of the measure/restrictions have to be shown from the point of view of the general public and not from the PoV of one affected party.
    • Right to privacy is an individual right which can be highly subjective or objective and the state cant be held to be vicariously liable for it. No petitioner has claimed infringement of right to privacy.questions the fact that right to Privacy violation is being heard as a PIL.
    • A person may use her aadhaar for obtaining SIM, opening bank account and getting PDS. Her telecom company will not have details of the bank/PDS. Similarly, her bank will not have info on her telecom and PDS. UIDAI won’t have any of the three details.
    • Aadhaar act provides adequate safety to identity and authentication records.
    • A party cannot expect strict adherance to the principles of natural justice during times of emergency.
    • Section 47 has been of challenge for not providing a right to complain. Purpose is discernible under the scheme of the act. A complaint can be filed to UIDAI therefore a person is not left remedy-less.
    • Aadhaar is technical and it’s best if UIDAI is given the power to complain as they best understand the matters. Similar provision in Industrial Disputes Act was upheld. UIDAI may authorize a person to make a complaint if they feel it’s genuine.
    • There are provisions under the IT act for offences such as Identity theft, violation of privacy etc.
    • The purpose of Aadhaar including section 139aa is to promote redistributive justice and ensure substantial equality along with furthering the dignity of the individual.  Aadhaar act and Income tax act are standalone acts and it cannot be said that parliament in it’s wisdom cannot make Aadhaar mandatory by way of an amendment.
    • This argument has already been examined and decided in binoy viswam. If the objects of the two statutes are different then they are said to run parallelly and not intersect. There’s no conflict.
    • Having Aadhaar for individuals also cures the evil vis-a-vis companies. Companies and individuals are treated differently in the income tax Act. That cannot be called unreasonable classification.
    • Section 165 of companies Act allows a person to be the director of twenty companies. If Aadhaar is linked with PAN, it can be checked whether a genuine person is the director of more than one company. The genuineness of the company can also be verified.
    • Problem of dummy directors and fake companies will be solved by linking Aadhaar with PAN.

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  • Attorney General KK Venugopal on the issue of Money Bill:
    • The term “targeted delivery of subsidies” contemplates expenditure of funds. The expenditure has to go into thousands of crores from the consolidated fund of India. This itself brings it into the ambit of money bill under Article 110 of the Constitution.
    • Even though the law has ancillary provisions, the main objective of the Act is delivery of services and benefits.
    • Sections 7, 24 and 25 along with the preamble of the Act brings it totally within the ambit of Article 110. Not a single provision in the act is unnecessary or unrelated to the main purpose/pith and substance of the act which is giving subsidies.
  • Chandrachud, J: Section 57 snaps the link with consolidated fund of India.
  • AG: When the contract is placed before your Lordships, then it has to be examined. We may not know today what color or aspect the contract under Section 57 would take.
  • Sikri, J: There’s no distribution of benefits and subsidies under section 57.
  • AG: Section 57 will be saved by Article 110(1)(g).
  • Chandrachud, J: You may be rewriting the Constitution!

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To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source: twitter.com/SFLCin

Hot Off The PressNews

Advocate Gopal Sankarnarayanan, who had begun his submissions on Day 33 of the Aadhaar hearing, continued with his submissions before he 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on day 34 of the Aadhaar Hearing.

Below are the highlights from Day 34 of the Aadhaar Hearing:

  • Chandrachud, J: Aadhaar section 7 seeks to identity the beneficiaries that require subsidies. It doesn’t take away other forms of identity.
  • Sankarnarayanan:
    • Aadhaar is a number which helps identify people who need subsidies. Many don’t need that identity.
    • I support Aadhaar for the control, security and safeguards it provides but Section 139aa of the Income Tax Act takes away those. “Individual Income tax pan holders (non corporates)” are targeted by the State via Aadhaar. With respect to financial scams, the problem was dummy companies, not individuals. Yet companies are not targeted.
    • For the purposes of Income tax, Aadhaar is mandatory, there’s no informed consent, and it is not related to Consolidated fund of India. Therefore proportionality test fails.
    • If the aim was curbing black money and preventing money laundering, then linking pan with individual Aadhaar holders doesn’t achieve that purpose. Therefore there’s no proportionality.
    • Indian law journal: users guide to privacy says Obfuscation is a technique by which privacy can be kept intact. It gives up on trust between individual and states though. Petitioners have a valid ground of lack of trust
    • “Identification of targeted beneficiaries” is key. Aadhaar is voluntary. It can be used as “proof of identity” for someone who doesn’t need subsidies.
    • Section 5 enjoins UIDAI to take special measures for vulnerable groups. It proves there is an element of discharge of obligation by the State.
    • The constitution lays down that any penny from the CFI has to go to the person for whom it was earmarked. It is an onerous obligation on the state. Aadhaar attempts to ensure, with the use of biometric authentication, that this obligation is dispersed.
    • If Aadhaar becomes the universal identity card replacing all other identity documents which were initially required to get an Aadhaar, then it is a concern.
    • Aadhaar identification is as secure and foolproof as one of the eighteen proof of identities taken at the time of enrollment because of the voluntary nature of section 7, there is balance in Aadhaar act, unlike Section 139aa wherein there’s no balance.
  • Chandrachud, J: Section 7 is not voluntary. Someone who wants subsidies will have to have Aadhaar.
  • Sankarnarayanan:
    • Aadhaar Act subserves articles 253 and 266(3) of the Constitution along with fundamental rights.
    • We don’t need the least restrictive test to show proportionality. Trust CIDR with my data.
    • Safeguards, balances and limitations provided under the Aadhaar Act makes it proportional.
    • National informatics centre runs both Supreme court website and UIDAI. SC website was hacked a few days ago.
    • UIDAI needs to plug the holes in the Aadhaar system before rushing with it. Aadhaar is not being able to keep up with technology.
    • Aadhaar has protection under the Aadhaar act and Section 43A of the IT Act, along with SPDI rules.

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  • Senior Advocate Neeraj Kishan Kaul:
    • If Aadhaar is a reliable, speedy tool for identification and authentication, then there’s no reason to hold it invalid.
    • Aadhaar authentication has made life easier for women in villages, migrants, etc.
    • Microfinance institutions will have a larger reach by virtue of Aadhaar and predatory financing will reduce.
    • Private players are also governed by the Act. Give private players the choice to use Aadhaar if they want since section 57 is an enabling provision under the Aadhaar Act.
  • Chandrachud, J: The need for verification should not be decided by private players.
  • Kaul:
    • The bench can make Privacy and data security regulations as stringent as possible. But as long as the private player and customer have consensus on using Aadhaar, it shouldn’t be disallowed as Aadhaar is the most effective and powerful tool for verification.
    • Aadhaar is based on matching algorithms, not learning ones like Google and Facebook.
    • I request the bench to not exclude AUAs and KUAs from using Aadhaar for their businesses. Merely because there’s a scope of misuse, a statute cannot be struck down.
    • Location of AUA and KUA is not revealed, so there’s no question of surveillance.

___________________________________

  • Advocate Zoheb Hossain:
    • Socio economic rights are justiciable rights, the SC has held in the past. Article 56 of UN charter talks about inter-relation between socio economic and civil political rights. Positive obligations of the State like food, shelter etc are embedded in Article 21.
    • In this case, the bench is balancing interference with the right to Privacy which is the numerator and denominator is the socio economic rights of the people. It is not just a case where part IV requirements are being read.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source: twitter.com/SFLCin

Hot Off The PressNews

On Day 33 of the Aadhaar Hearing that has been going on since January 17, 2018, Senior Advocate Rakesh Dwivedi concluded his submissions and made way for other counsels to present their 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 Day 33 of the Aadhaar Hearing:

  • Dwivedi: UIDAI’s control over RE is a fair and reasonable safeguard under Article 21. Data under REs is segregated. There’s no way to aggregate that data as there are over 300 REs.
  • Sikri, J: What about an individual RE collecting data?
  • Dwivedi:
    • Lets take the example of Vodafone. what will vodafone do with the authentication data? They can’t track any individual. Vodafone can do targeted advertising using the data which is already happening without Aadhaar. Vodafone has far more demographic data about an individual than UIDAI has. In the case of UIDAI, there are so many regulations and penal consequences that don’t apply to Vodafone.
    • Nobody is questioning what banks and telecoms are collecting. The single target is Aadhaar. (shows a credit card statement to the bench to show that banks have a record of all transactions made by an individual including the place of transaction.)
    • It’s not difficult to collect data about someone from Google. How much senior advocates charged for particular cases is also available online. We need to have big data, processing power and statistical know how to do big data analysis as Google is doing. Google and Facebook process tremendous data on a daily basis. UIDAI does not have that kind of algorithms.
    • It is doubtful that an RE that collects data and transfers that data without any other data has any value. Also RE s do not have authentication records. We are still conscious about providing as much security as possible because we want to gain the trust of the people.
    • Explaining the control of RE:
      • RE buys fingerprint device from a vendor. We control the vendor with respect to the hardware and software of the device.
      • We also put a key in the device so that the data is encrypted and sent to CIDR. Machine is then taken to STQC and that Dept looks into the device to see whether it meets all the requirements. Device preparation and certification happens without the knowledge of RE.
      • Information systems operator then conducts an audit of the RE and the report is submitted to UIDAI. If it is approved then the RE gets a license from UIDAI in order to operate as an RE.
      • Meta data is important for validation that the data is coming from a particular RE with which uidai has an agreement. Meta data is required for fraud management and verification.
      • REs have a data vault as well. It is controlled by trusted people. Apart from this there are two more audits conducted: annual audit and random audits by UIDAI. Even ASAs are audited likewise. Relevant regulations are 19(1)(g) and 21.
      • Nature of information is such that it is not of any commercial value. All REs are already possessed of this information and much more. UIDAI has device control which happens before the device is purchased. There are double pairs of keys.Encryption is immediate and time stamped.
      • Transmission requires digital signature with a private let. There’s a data vault. There’s complete prohibition of storing PID block. Even demographic info is prohibited from transfer. Three level auditing by information system auditor.
      • There are penal consequences if any provision of the Aadhaar Act or regulation is violated.
      • Central government has no access to UIDAI’s data as UIDAI is an autonomous body. Hence, no surveillance is possible.
    • While examining the problem of smart cards, even the EU has said that having a centralized database is important. Decentralization leads to fakes and duplicates.
    • Aadhaar SIM linking helps in ensuring that Sim card is given to the person who’s applying for it. This is a legitimate state interest. he measure to verify your SIM card one time is not excessive at all. Therefore it’s proportional to the object sought to be achieved.
  • Chandrachud, J: SC never directed in LokNiti foundation order to carry out e-KYC of mobile nos. using Aadhaar. The DoT notification says that Aadhaar SIM linking is being done on the direction of the SC while the SC had not issued any such direction.
  • Dwivedi:
    • No, it was done on the recommendation of TRAI before the Lok Niti order had even come out. My submission is that the government had a legal basis to link Aadhaar with SIM by virtue of section 4 of the telegraph act. Also, the measure is reasonable in the interest of national security.
    • There’s no possibility of surveillance via CIDR. CIDR is absolutely necessary to avoid fakes. The entire architecture is such that there’s no aggregation of data and therefore no surveillance. That’s why there’s a mix of public and private players.
    • The system stands the test of article 21 on its own and there’s no infringement of right to privacy. This project has the support of two governments because Congress had started this and Mr. Sibal was part of the cabinet that time.

_______________________

  • ASG Tushar Mehta: Does Aadhaar pass the muster of Article 300A? “Authority of law” phrase in 300A gives the power to the legislature to link Aadhaar with bank account under PMLA. The PMLA rules have the backing of the PMLA. A statutory rule is akin to law under Article 300A of the Constitution. The parliament cannot every time amend the law (PMLA) for example in respect of money laundering. Therefore a wide statutory network is provided and power is given to the rule making authority.

_______________________

  • Senior Advocate VV Giri: I want to appear on behalf of State of Kerala in order to argue on legislative competence.
  • Bench: States cannot challenge a central govt statute. You can submit bullet points on what you want to argue and then the bench will decide if you can be allowed.

_______________________

  • Senior Advocate Jayant Bhushan:
    • RBI has issued the master circular by virtue of its power under banking regulation act.PMLA Rule 9(4) provides that Aadhaar has to be submitted to reporting entity.
    • Under Rule 9(14) provides that the regulator (RBI in this case) shall provide guidelines incorporating the requirements of sub-rules (1) to (13) above and may prescribe enhanced or simplified measures to verify identity.
    • Requirements under Rule 9(1)-(13) is made mandatory by Rule 9(14). The master circular is now in conformity with PMLA rules. RBI has no option but to amend the master circular.

_______________________

  • Advocate Gopal Sankarnarayanan:
    • Aadhaar Act is valid subject to three specific provsions that have to be read down or struck down.
    • Right to identity is an absolute fundamental right. Aadhaar provides one kind of proof for identification. It arises from recognition of an individual.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source: twitter.com/SFLCin

Hot Off The PressNews

“Development requires the removal of major sources of unfreedom: poverty as well as tyranny, poor economic opportunities as well as systemic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states.” – Amartya Sen

On Day 31 of the Aadhaar Hearing, the discussion between Senior Advocate Rakesh Dwivedi and the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ began with the former quoting the abovementioned lines.

Below are the highlights from Day 31 of the Aadhaar Hearing:

  • CJI: Liberating people from un-freedom (poverty) is at one end of the spectrum and right to privacy is on the other.
  • Chandrachud, J: Aadhaar is a means for identification according to you. The only caveat to that is that there should be no exclusion.
  • Dwivedi: The point of Aadhaar is to bring the provider of benefit face to face with the beneficiary.
  • Chandrachud, J: I’m not sure if that’s the best model. The individual should not be a supplicant. The State should go to him and give him benefits.
  • Dwivedi:
    • Various judgments of the Supreme Court on economic and social welfare culminated into the Parliament framing the Aadhaar Act.
    • What is being done under section 7 of the Aadhaar Act covers human rights of a lot of people of our country. This court should act as a sentinel to ensure that right to privacy is balanced with all the other rights under Article 21 that Aadhaar covers.
    • Privacy is a small price to pay for ensuring life itself and also the rights under Article 21 of the Constitution.
    • Aadhaar Act draws distinction between demographic info, optional demographic info (mobile no.), core biometric information, and biometric information like photograph. Idea of reasonable expectation of privacy varies from one set of data to another.
    • Reasonable expectation of privacy in case of demographic info and photo will be very low as such information is publicly available. We are concerned only about real and general apprehension or fear of the public with respect to Aadhaar. Fear is subjective.
  • CJI: Some fears are misconceived.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source:  twitter.com/SFLCin

Hot Off The PressNews

On day 30 of the Aadhaar Hearing, Senior Advocate Rakesh Dwivedi continued with his argument probabilistic method that he had begun on Day 29 of the hearing 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 Day 30 of the Aadhaar Hearing:

  • Dwivedi: The algorithms which are probabilistic are not all identical. Parliament was conscious of the exclusion that could happen. It was also aware of the digital divide. Hence, provided three alternatives under section 7 of the Aadhaar Act. 2016. There can’t be denial of service. Option to furnish proof of possession of Aadhaar number under section 7 if authentication can’t be done.
  • Chandrachud, J: Does proviso to section 7 apply to third alternative?
  • Dwivedi:
    • Yes, it is applicable in case an individual has applied but has not been assigned Aadhaar number.
    • There is no question of denial. Denial is something that should not happen, ought not to happen. Though some more actions would be required to ensure this.
    • For limited purpose, ration cards are also included. If for some reason, one member of the family is unable to authenticate, any other member of family can come for authentication.
  • Chandrachud, J: Is there is any isolated pocket in country where Aadhaar services have not been able to reach?
  • Dwivedi:
    • In such a case, alternative methods will apply.
    • As of now-pending the judgment, even if someone has not enrolled for Aadhaar, there’s no compulsion under section 7. There’s still time. The third alternative under S. 7 can apply only if the enrolment process has begun.
    • In case of PDS scheme, the central govt. is competent to replace the identification card with which benefit is to be obtained if it thinks that the latter is more reliable. Thus, it can replace the ration card with Aadhaar card.
    • Every institution will have some kind of identification procedures and we will have to follow them. These are regulatory processes.
    • When you identify, it is a matter of dignity. Because you are recognised. We all strive to get recognised. It is a matter of pride.
    • No right is absolute. Regulations are permissible.
  • Chandrachud, J: There should be a choice of identity. If the choice is not there, it is not proportional.
  • Dwivedi: If you have to get benefits from an institution,you should comply with the requirements prescribed by it. Aadhaar is unique and universally applicable. No language barrier like other ID cards.
  • Chandrachud, J: If my biometric are attached to every transaction I undertake, it ceases to be just an identification mark.
  • Dwivedi: Only one finger or one iris is used for authentication. It discloses no information.
  • Chandrachud, J: Fingerprint by itself doesn’t disclose any info. But, when it attaches with all the other information, it forms a wealth of information. There comes the need of data protection.
  • Dwivedi: Data is disaggregated between different REs.
  • Chandrachud, J: In such a case, aggregation of data is all the more possible.
  • Dwivedi: In most cases, authentication is done only once. Eg. PAN. It is for lifetime. For sim cards, it is done only at the time of obtaining it. So, where is this multiplication of authentication from morning to evening coming from? Realistically speaking, there’s no trail of authentication from morning to evening. No real time tracking is done.
  • Shyam Divan interjects: The demo of withdrawing Rs 100 using a thumbprint was shown in the court. That’s tracking.
  • Dwivedi: Where is it provided in law that you need to give thumbprint every time you transact? You only have to link it with your bank account.
  • Shyam Divan: I am asked for my thumb impressions everytime I need to open a Fixed Deposit.
  • Dwivedi: Not everybody is capable of opening FD everyday. It is done only once or twice in a year generally.
  • Dwivedi (On dignity): There are two parts of preamble.
    • “To secure to all its citizens…” and
    • “to promote among them all…”
    • Securing justice is a part of the basic feature of the Constitution. Minimum requirements to enable a man to survive to live is a position duty of the State. And it is for these minimum requirements that the Acts like NFSA, etc. are there.
  • Chandrachud, J: Constitution protects dignity in all its forms.
  • Sikri, J: Food is a part of dignity and so is privacy. When there’s a conflict between the two, it has to be considered which should prevail. But, why can’t we say that there’s no conflict. Both are to be ensured.
  • CJI: The point is when you take fingerprints for Aadhaar, it gets stored in Aadhaar. This is an invasion of right to privacy.
  • Dwivedi: Any system which involves biometrics will require storage of biometrics- either at single point or multiple.
  • CJI: Minimal intrusion with legitimate interests have to be ensured.
  • Dwivedi: Providing services and benefits is to ensure dignity and liberty of individuals. Which is a legitimate interest.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source:  twitter.com/SFLCin

Hot Off The PressNews

On Day 25 of the Aadhaar Hearing, Attorney General KK Venugopal continued arguing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the safety aspect of biometrics.

Below are the highlights from Day 25 of the Aadhaar Hearing:

  • AG:  Finger imaging technology is 99.9% accurate. Biometrics is a very safe and accurate technology and can solve problems such as money laundering, bank frauds, income tax evasion etc.
  • Sikri, J: Bank frauds weren’t caused because of multiple identities.
  • Chandrachud, J: Aadhaar will not prevent an individual from operating layers of commercial transactions. It won’t prevent bank frauds either. Can only help in providing benefits under section 7 of Aadhaar Act, 2016 at most. Mere legitimate state interest does not ensure proportionality. Your submission lacks this nuance.
  • AG: Aadhaar will help in income disparity and eliminating poverty.
  • Sikri, J: The gap is widening. More than 70% wealth is in the hands of 1%.
  • Chandrachud, J: Proportionality is key. How far can the state cast the net of Aadhaar. Only section 7 seems to be understandable.
  • Sikri, J: You cannot assume that the entire population consists of defaulters and violaters. What is the logic in linking all sim cards to aadhaar.
  • AG: Terrorism will be curbed by doing this.
  • Chandrachud, J: Do terrorists apply for sim cards? It’s a problem that you’re asking the entire population to link their mobile phones with Aadhaar.
  • AG:
    • We are asking for minimal information via Aadhaar. Most information is already available in public domain. The question is to what extent has Aadhaar invaded privacy? It’s as minimum as possible.
    • Aadhaar is required only for section 7 benefits, banks, income tax and mobile nos. Apart from that it’s purely voluntary.
    • Court needs to balance two competing rights. Maintains that right to food, right to employment, right to medical care, etc trump right to privacy. Can right to privacy be invoked to deprive other sections of the society?
    • The invasion to privacy is so minimal that it can’t even be considered an invasion. In X v. Hospital Z right to privacy was balanced against right to information. The appellant ( a man) had HIV and had the right to non disclosure. However, the court had held that his fiance had the right to know of his disease.
  • Sikri, J: This is the case of balancing the rights of two person. In the case of Aadhaar, you’re giving a person food in exchange of their privacy.
  • AG: The bare minimal requirements for identification for an individual is alone taken and to the extent that the technology permitted. Should people have basic right to life under article 21? Can it ever be challenged on the ground that we have a right to privacy?
  • Bhushan, J: Minimal invasion is subjective. What maybe minimal for one might not be minimal for you.
  • AG: Please look at the information that is taken and look at it from objective standards. We have to look at the larger interest of the country.
  • Chandrachud, J: We have to look at three things: informed consent, purpose limitation, and enough security.
  • AG: The CIDR is completely safe.
  • Chandrachud, J: We have to look at what proportionality means. Proportionality hasn’t been defined in the Privacy judgement.
  • AG: Without the minimal information that is collected, the entire architecture of Aadhaar couldn’t have been framed. Sections 29 a and b contain purpose limitation. Aadhaar was voluntary when it was rolled out, therefore there’s no question of violation of any right.
  • Sikri, J: Is it permissible to say that I’ll give you food, shelter, etc but you’ll be my slave?
  • AG: Slavery is not permissible.
  • Chandrachud, J: Your argument to save the validity of the act does not take into account what happened before the act was passed. There was no protection for the citizens that time. There’s no retrospective effect also. What about collection of data by state Governments?
  • AG: State Governments act as the agent of the Central Government.
  • Khanwilkar, J: Is biometrics locking option available for people who don’t want to use Aadhaar?
  • Shyam Divan intervenes: There’s no way to opt out of the Aadhaar system.

____________________________________________________________________________________________________________________________

To read the highlights from the other submissions by the Attorney General, click here, here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source:  twitter.com/SFLCin

Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Hot Off The PressNews

On Day 24 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 continued hearing the arguments of Attorney General KK Venugopal.

Below are the highlights from Day 24 of the Aadhaar Hearing:

  • AG:
    • We live in a digital era and Aadhaar is the best way to prevent money laundering and deliver subsidies and benefits. A lot of Government fund has gone into this project.
    • Aadhaar will last for a long time in the future. It has been approved by UN and world bank. Aadhaar is an ongoing process and the technology and security will be updated as and when required.
    • Policy decisions of the government approved by experts are not subject to judicial review. Three organs of the State should have mutual respect for each other in a democracy.
    • Development will slow down if there’s judicial review of every administrative action. Courts should not interfere in matters of technical expertise. The only duty of the court is to expound the language of the act. They cannot decide if a particular policy decision is fair
  • Sikri, J: Petitioners are arguing on the basis of proportionaliy. You say there’s minimal invasion of privacy. Petitioners are challenging that argument.
  • AG: State has a legitimate state interest in rolling out Aadhaar. Aadhaar is in line with the Privacy judgement.
  • Bhushan, J: We are not concerned with policy decision. We are looking at the Act and regulations.
  • AG: Courts cannot question the wisdom of experts. There’s no question of privacy involved in this case. The entire challenge is whether Aadhaar is safe and secure, which we have already proved it is. The sixteen digit virtual ID is an excellent safety measure.
  • Chandrachud, J: Is the onus on the individual to generate a virtual ID?
  • AG: Yes, it’s on the individual.
  • Chandrachud, J:  Can 20 Crore people do it?
  • AG: It’s an additional measure.
  • Chandrachud, J: Maybe this measure should be applicable to every Aadhaar number without the individual having to generate it. Perhaps Aadhaar passes the test of legitimate state interest, but proportionality is in question.
  • AG: It stands the test of proportionality because all alternative measures were considered before adopting Aadhaar. The Court should not become an approval authority. It is the duty of the State to look after the welfare of the people in a democracy.
  • Chandrachud, J: “Biological attributes” is open ended.
  • AG: Blood, urine, DNA can be added, but it’ll be subject to examination by the courts, just like right now the court is examining whether collection of fingerprints and Iris scans are a violation of privacy. Parliament will be an oversight body.
  • Chandrachud, J:  The power of UIDAI to decide what is ‘biological attributes” and the method of collecting it has to meet the test of proportionality. The regulations don’t need the approval of the parliament under section 55. The parliament can only disapprove of it. But the initial power to frame regulations lies with UIDAI which might be a case of excessive delegation.

____________________________________________________________________________________________________________________________

To read the highlights from the other submissions by the Attorney General, click here and here

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU SIngh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source:  twitter.com/SFLCin

Case BriefsSupreme Court

Supreme Court:

“When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large.” – Dipak Misra, CJI

These were the opening words by CJI in the judgment that stated elaborate preventive, remedial and punitive measures to meet the challenges of the agonising effect of honour crime.

When the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ sat for answering the question as to whether the elders of the family or clan can ever be allowed to proclaim a verdict guided by some notion of passion and eliminate the life of the young who have exercised their choice to get married against the wishes of their elders or contrary to the customary practice of the clan, it held that the answer has to be an emphatic “No” and recommended the legislature to bring law appositely covering the field of honour killing. It further said:

“Class honour, howsoever perceived, cannot smother the choice of an individual which he or she is entitled to enjoy under our compassionate Constitution. And this right of enjoyment of liberty deserves to be continually and zealously guarded so that it can thrive with strength and flourish with resplendence.”

Stating that no authority has been conferred upon Khap Panchayats or any such assemblies under any law, the Bench explained:

“when a crime under IPC is committed, an assembly of people cannot impose the punishment. They have no authority. They are entitled to lodge an FIR or inform the police. They may also facilitate so that the accused is dealt with in accordance with law. But, by putting forth a stand that they are spreading awareness, they really can neither affect others’ fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.”

It was, however, made clear that an assembly or Panchayat committed to engage in any constructive work that does not offend the fundamental rights of an individual will not stand on the same footing of Khap Phanchayat.

Directing the State Governments to implement it’s directions within 6 weeks, the Bench enumerated the following steps to check the menace of honour killings ordered by the Khap Panchayats:

Preventive Steps:

  • The State Governments should identify Districts, Sub-Divisions and/or Villages where instances of honour killing or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years.
  • If information about any proposed gathering of a Khap Panchayat comes to the knowledge of any police officer or any officer of the District Administration, he shall inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.
  • The Deputy Superintendent of Police shall then immediately interact with the members of the Khap Panchayat and impress upon them that convening of such meeting/gathering is not permissible in law and to eschew from going ahead with such a meeting.
  • Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution.
  • If the Deputy Superintendent of Police, after interaction with the members of the Khap Panchayat, has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the participants in the assembly under Section 151 Cr.P.C.

Remedial Steps:

  • Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat, the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Penal Code including Sections 141, 143, 503 read with 506 of IPC.
  • Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose.
  • The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis.
  • The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/ Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week.
  • The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police incharge of the concerned sub-division to cause to register an F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C.
  • In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be.

Punitive Steps:

  • Any failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance.
  • The States must take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident had already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
  • The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Adi-Dravidar Welfare Officer to receive petitions/complaints of harassment of and threat to couples of inter-caste marriage.
  • These Special Cells shall create a 24-hour helpline to receive and register such complaints and to provide necessary assistance/advice and protection to the couple.
  • The criminal cases pertaining to honour killing or violence to the couple(s) shall be tried before the designated Court/Fast Track Court earmarked for that purpose. The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence. This direction shall apply even to pending cases.

[Shakti Vahini v. Union of India, 2018 SCC OnLine SC 275, decided on 27.03.2018]

Hot Off The PressNews

After Attorney General KK Venugopal sought the permission of the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on Day 20 of the Aadhaar hearing to allow the CEO of UIDAI to present a PowerPoint presentation explaining all technical and security aspects of Aadhaar before it, the Bench allowed the same and asked the petitioners to submit a questionnaire based on the presentation on the next date of hearing i.e. 27.03.2018.

Below are the highlights from the presentation by Ajay Bhushan Pandey, the CEO of UIDAI, on Day 21 and 22 of the Aadhaar hearing:

Day 21:

  • In pre Aadhaar times, most people didn’t have IDs. Even I didn’t have an ID since I come from a small village. From 2000-09 also, people didn’t have IDs. Voter ID also doesn’t solve the problem. Children can’t get it.
  • Getting a ration card was also difficult because it required other IDs to procure a ration card. Voter id and ration cards are region specific. It’s not nationally accepted.
  • Aadhaar is nationally verifiable digital ID. It’s not difficult to procure. Genuineness of ration card is not easy to ascertain.
  • The 12 digit Aadhaar number is a completely random no. Once issued, it’s never issued again, even if the person dies. We did not want to link it with citizenship and it includes transgenders and children.
  • People may not be able to provide biometrics due to reasons like leprosy, but we have made exceptions for such cases.
  • Enrollment and updation can happen in any part of the country. It’s a portable entitlement. Not region specific, unlike other IDs. There’s no data sharing without consent.
  • Data is shared only on the instructions of district judge and for national security.
  • Even father’s name is not necessary. No info on religion, caste etc is collected. In the US, to get a birth certificate, a lot of information is collected. Even info like the kind of pregnancy is taken.
  • Chandrachud, J: What is the biometrics exception for people who can’t possibly give their biometrics?
  • Pandey:
    • Authentication will happen through OTP in such cases.
    • Enrollment agencies are both public and private. We empanel these agencies based on certain criteria. Then registrars decide of an agency is fit to be an enrollment agency.
    • We have operator certification agencies along with 30k enrollment centres. Decentralized enrollment, but the data is stored in a centralized place. There’s a safe button with enrollment agencies to encrypt data (2048-bit).  It’ll require the strength of the entire universe to break that encryption! Traceability of all actors is ensured through audit trail.
  • Sikri, J: Why did you de-register so many agencies then?
  • Pandey: It was due to corruption mostly. Also some operators were not entering the details properly. We have very strict quality control standards.
  • Sikri, J: It’s incomprehensible that 49,000 people fall in that category.
  • Pandey: We have high quality parameters. 120.3 cr have enrolled. we enrol children as soon as they are born. We don’t take biometrics of the infant. Only photograph is taken. Biometrics of parents are collected. At the age of 5, we take the child’s biometrics and then again at age 15.
  • Sikri, J:  Do you contact the child or do they have to come to you? This was one of the arguments related to exclusion.
  • Pandey: Anganwadi workers themselves become enrollers. Also, enrollment camps are set up in schools. (Gives details on Aadhaar customer care and how to locate Aadhaar agencies)
  • Chandrachud, J:  What happens when a person’s biometrics change? For eg, for workers and labourers.
  • Pandey:  People can go to enrolment centres and get their details updated.
  • Sikri, J: Many people might not know that their biometrics have changed. What do they do?
  • Pandey:
    • In such cases, a person goes for authentication, for example to a PDS shop and his Biometrics don’t match, then an error code is sent to UIDAI and then the person will be asked to update his biometrics. (Chandrachud, J is not convinced with this method. Says this will lead to exclusion.)
    • A circular was issued yesterday, which said that if a person’s authentication through biometrics does not happen, then he shall not be denied benefits for that reason.
    • Every Aadhaar card has a QR code, which prevents de duplication. The QR code will also show the person’s photo. This method can also be resorted to if biometrics don’t match.
  • Chandrachud, J: You’ll know when there’s an authentication failure in your database, but you won’t know if there has been denial of service.
  • Pandey: We tell entities to make exception handling measures.
    • Aadhaar enrollment is done in prison also. We are starting enrollment centres in banks and post offices. Enrollment and updation of Aadhaar is a continuing process. The total cost of an aadhaar card is less than one dollar.
  • Khanwilkar, J: Other side claims that Aadhaar software is designed outside india, and is prone to tampering.
  • Pandey:
    • Only biometrics matching software has been taken from the world’s best companies. Rest has been developed in India. The servers are ours. We have 6000 servers. Just because we are using the services of these companies, doesn’t mean that they have our data. The biometrics is also anonymized by a reference number before it’s matched against the biometrics stored in the central database.
    • Till now no agency has taken biometrics data for the purpose of national security. We have denied data to CBI also.
    • We have registered devices for authentication. The devices use our key for encryption. The biometrics is not shared with the requesting entity also. Authentication process takes less than a second. We don’t collect purpose, location and details of the transaction.
    • We are doing four crore authentications everyday. We don’t know the purpose of these authentications. Information remains in the silos and merging of silos is also prohibited.

 Day 22:

  • Pandey: Operators check individual packets of data received during enrollment. There are 65 operators who are responsible for verifying biometrics.
  • Chandrachud, J:  Is it possible for the enroller to make copies of the data before the data is encrypted and sent to CIDR?
  • Pandey: Enroller does not have access to biometrics. it’s collected by uidais software. Also retaining data by the operator is an offence. We have zero tolerance policy. We have started phasing out private enrolment agencies. Now only banks and post offices will do it. A notification was issued in July that says that 12500 banks and 15000 post offices will become operator agencies.
  • Sikri, J: That is because you don’t need so many enrollment agencies now. People have already enrolled.
  • Pandey: We are doing it for updation of Aadhaar. Our central authentication server is not connected to the internet for security purposes.
  • Chandrachud, J: Central authentication server is not connected to the internet for security purposes.
  • Pandey: Few dozen.
  • Chandrachud, J: AUA has a record of how many times an authentication request was made even if UIDAI doesn’t.Parting with that data is a commercially profitable enterprise. The private sector AUA can misuse that data.
  • Pandey: They are prohibited under Section 29(3) of the Aadhaar Act. Section 38(g) also prohibits it. Further there are regulations to prevent such misuse. Regulation 17(1)(d) for example.
  • Chandrachud, J: The problem area is that private service providers have a record of authentication requests which can be misused in various ways to profile individuals.
  • Khanwilkar, J: The state has to clear the apprehensions of the petitioners with respect to the software of Aadhaar.
  • Pandey: Software is secure and there hasn’t been one data leak till date. (Tells court to not believe media reports. Denies recent report of breach by ZDnet). Now we have made it a standard practice to only display the last four digits of the Aadhaar no., wherever needed.
  • Chandrachud, J: The high level of security maintained at CIDR is not maintained at the other end like AUA also. Unless the security at the other end of the spectrum is secured, Aadhaar will be a problem.
  • Pandey:
    • Aadhaar based authentication and other services like withdrawal of funds is akin to a walking ATM. (physically demonstrates the process of authentication. Shows what all information is displayed. Says location, purpose etc is not showed.) 
    • Debit cards and pin nos. are difficult to use by most people in India. Aadhaar makes it simpler and allows people to be financially included.
    • A person can enter his/her Aadhaar details on uidais website to check her authentication history. This way he/she can know if her Aadhaar no.was misused.
    • We have no meta data that reveals anything about an individual such as likes and dislikes.
    • The technology and architecture board review the technology of Aadhaar. Similarly the security review board reviews the security of Aadhaar. Security is an ongoing challenge and we need to keep upgrading it. (discusses the privacy safeguards in Aadhaar like virtual I’d, uid token, purpose and use limitation, strict confidentiality, online access to authentication history, biometrics lock, strict punishment under the Aadhaar act)
    • We can make further regulations if there are any concerns related to the security and privacy of the Aadhaar ecosystem.
  • Sikri, J: It cannot be ruled out that authentication history will not be shared under section 33.
  • Pandey: Till date we haven’t shared data with any other agency.
  • Sikri, J (on Virtual Aadhaar ID generation): How many people will be able to use it? You can’t explain illiterate people to use virtual ID.
  • Pandey: this is just an additional safeguard apart from the Act.
  • Sikri, J: If the authentication logs are kept with the authentication/requesting entity. What is the nature of this data?
  • Pandey:
    • Details except biometrics are kept.
    • Audits are done on AUAs, and requesting agencies, by UIDAI itself or by an agency appointed by them to ensure smooth functioning of the system. Anil Jain, professor of Michigan state university, and expert on biometrics, was consulted. He suggested multi modal biometrics authentication i.e both iris and fingerprints should be combined for the process of identification and authentication. Another expert was consulted and he suggested that iris should be used, because fingerprints often don’t work.
  • Bench: AG should be making such arguments, not CEO of UIDAI.
  • Pandey: Using virtual ID and uid token ensures that databases are not joined. We make distinctions between what agencies require real Aadhaar no.and what agencies do not. For eg. Telecom does not require real Aadhaar no. But income tax does.
  • Bench: Submit a note explaining Virtual id and uid token and how their usage prevents duplication.
  • Pandey:
    • UID token is a 72 character alpha numeric string meant only for system usage. For the same resident, different AUAs or KUAs will have different uid tokens. Aadhaar cannot be reverse engineered from the token.
    • Central database of biometrics is important, to ensure uniqueness. Uniqueness may not hold true in the case of smart card, and one person can have multiple cards with different identities and same biometrics. There’s no identity theft if Aadhaar is lost. The same cannot be said of smart cards.
    • Surveillance is not possible with CIDR as silos are not merged. Surveillance is possible by smart cards by merging databases.
    • Keeping too much information on a smart card is not a good idea. Replacement of smart card with a better technology in the future is a huge responsibility. Changing encryption kept on a smart card from time to time is not possible. Says offline smart card is not a substitute for online authentication. (On Singapore like Smart card system)
  • CJI:  Does the enroller or requesting entity has access to any data?
  • Pandey: Data is encrypted and sent to CIDR, so there’s no question of misuse.

Petitioners then submitted a list of questions based on the presentation. They also argued that the deadline for Section 7 benefits should also be extended. Fourteen crore forty eight lakh authentication failures have taken place for section 7 benefits and subsidies. CJI, however, refused to extend the deadline.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU SIngh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source:  twitter.com/SFLCin

Hot Off The PressNews

The counsels appearing for various petitioners in the final hearing on the Aadhaar matter that has been going on since 17.01.2018, finally concluded their arguments on the 19th Day of the hearing and made way for the Attorney General KK Venugopal to begin his submissions on the 20th Day of the hearing 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 Day 19 of the Aadhaar Hearing:

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.
  • Surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression.
  • Collection, aggregation and retention of personal data under Aadhaar has has no defined purpose and thus doesn’t meet the test of proportionality and strict necessity.
  • Lack of foreseeability and apprehension of abuse justifies intervention by the court in present case.
  • Aadhaar act contains no provisions for data protection, apart from a mere obligation on the Authority to ensure security of the information which again is vague and doesn’t lay down any data security standard or prescribe measures in case of data leak. In Aadhaar project, there are no judicial safeguards or effect remedies in case of breach.
  • Aadhaar infringes the right to dignity of the individual as it amounts to requiring a licence for exercising fundamental rights. Making Aadhaar sole means of identification is neither wise nor fair as primary objective of govt. schemes is to ensure that beneficiaries get the services instead of being excluded.

Submissions of Senior Advocate Sajan Poovayya:

  • A legislation may satisfy the tests of restrictions, however, looking from the lens of technology, the same legislation may prove to be intrusive.
  • Compelling state interests is ensuring the identity of individuals but it must be achieved using least intrusive methods. Assuming biometric technology is not bad, then least intrusive method is using a card with a chip which stores the biometrics.
  • In a democratic society, an individual must have the right to decide how much info he/she wants to submit.
  • In case of a chip being used, the chances of biometric failure is also reduced.
  • Even if we accept that biometric info is necessary, then what all biometric info must be made mandatory to be provided?
  • Aadhaar doesn’t stand on the same footing as Census data where statistical data of all the citizens is taken which also has a lot of protection. Why should Aadhaar data be given less protection then when it contains more sensitive data?
  • We don’t have a data protection legislation in India. In case of phones or Google servers which have multiple interfaces, possibility of collation of data is not there since GDPR stops them from doing so.
  • In case of Aadhaar, there’s a centralised database unlike the localisation of data as in the case of phones which causes problems.
  • Biometric per se is not bad but when used in connection with technology, it becomes bad.

Submissions of Senior Advocate Senior Advocate CU Singh:

  • India has acceded to the Convention on Rights of the Child and enacted Juvenile Justice Act and POCSA.
  • The legislations ensure the privacy of the child. Under law, a child has no right to give consent or to enter into a contract. Child cannot be deemed to have given consent under Aadhaar that too when it involves parting with data permanently.
  • Fundamental right to education cannot be subjected to production of Aadhaar.

Submissions of Senior Advocate Senior Advocate Sanjay Hegde (appearing for a petitioner having objections based on religious theology):

  • John Abraham was a student in a Mumbai school but was denied admission to Class 12 for non-production of Aadhaar.
  • The individual conscience of the petitioner leads in good faith to the conclusion that he cannot apply for Aadhaar number. Thus, there should be an exception for him. (Sikri, J finds the argument interesting. Says the Bench will consider it)

Submissions of Counsel Jayna Kothari (appearing for an organization that represents the rights of transgenders and sexual minorities):

  • Much has been discussed about Biometrics but not demographic data collected under the Aadhaar Act. Transgenders cannot get Aadhaar because they don’t have gender identity documents required by Aadhaar. Caste, religion is left out but not gender. It’s a violation of privacy and equality.

To read the highlights from the submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

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.

Source:  twitter.com/SFLCin

Hot Off The PressNews

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.

Source:  twitter.com/SFLCin

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: twitter.com/gautambhatia88 and twitter.com/SFLCin

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.

Source: twitter.com/SFLCin

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.

Source: twitter.com/prasanna_s

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.

Source: twitter.com/gautambhatia88