Legislation UpdatesRules & Regulations

No. 13012/79/2017/Legal-UIDAI(13)/Vol.II (No. 3 of 2019).—In exercise of the powers conferred by sub-section (1) and sub-clause (b), (e), (j), (v) and (x) of sub-section (2) of Section 54 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Unique Identification Authority of India hereby makes the following regulations to further amend the Aadhaar (Enrolment and Update) Regulations, 2016 (No. 2 of 2016), namely:—

1. Short title and commencement.—

(1) These Regulations may be called the Aadhaar (Enrolment and Update) (Seventh Amendment) Regulations, 2019 (No. 3 of 2019).

(2) These shall come into force from the date of their publication in the Official Gazette.

2. Amendment to Schedule II [referred in Regulation 10(2)] of the Aadhaar (Enrolment and Update) Regulations, 2016.

(I) In Schedule II, in List A (Proof of Identity) documents at Sl. Nos. 19 to 31, in List B (Proof of Address) documents at Sl. Nos. 34 to 44, in List C (Proof of Relationship) documents at Sl. Nos. 10 to 14 and in List D (Date of Birth) documents at Sl. Nos. 5 to 14 shall be inserted. This shall have an overriding effect to earlier amendments in Schedule-II.

*To get detailed information regard to the amendment of Schedule-II, please follow the link: NOTIFICATION


Unique Identification Authority of India 

[Notification dt. 05-09-2019]

Hot Off The PressNews

Supreme Court: While hearing Facebook Inc’s petition asking Supreme Court to hear all cases related to demands for linking Aadhaar to social media accounts and tracing the source of WhatsApp messages, the Court said that there has to be a balance between privacy and how to govern. The court, hence, issued notice to Facebook, Twitter, Google, YouTube, the centre and Tamil Nadu asking for their response by September 13 on whether the petitions should be transferred from high courts across India to the Supreme Court. Various cases are being heard by the high courts of Madras, Bombay and Madhya Pradesh and Orissa.

The Court said,

“There is a conflict between privacy and how the government should run the country when crimes are committed. There has to be a balance… under what condition information can be given and to whom,”

Facebook and WhatsApp, asking that all petitions be transferred to the top court, said it was a matter of high magnitude and affected the privacy of the entire nation.

On Monday, the Tamil Nadu government had told the Supreme Court that social media profiles of users need to be linked with Aadhaar numbers to check the circulation of fake, defamatory and pornographic content as also anti-national and terror material. However, Facebook Inc resisted the state’s suggestion on grounds that the sharing of the 12-digit Aadhaar number, the biometric unique identity, would violate privacy policy of users.

Facebook Inc said it cannot share the Aadhaar number with a third party as the content on its instant messaging WhatsApp was end-to-end encrypted and no one can access it.

The Tamil Nadu government, which is deep into a case related to the deadly Blue Whale game, argued that the centre was struggling to find out who the creator of the game was and who gives directions. Attorney General KK Venugopal, representing Tamil Nadu, said,

“Someone says he is a young person from Russia. A number of people have died in India playing the Blue Whale. Let the Madras High Court continue with its hearing,”

The Supreme Court said,

“We are aware of Blue Whale. What is happening in dark web is worse than Blue Whale. The idea of the Madras High court expanding the issue was that if need be, shouldn’t the intermediary inform the police about details of person for crime detection? We are not examining the merits of the case, only dealing with the transfer of the cases to the Supreme Court.”

(Source: NDTV)

Legislation UpdatesNotifications

S.O. 2903(E).—Whereas, the use of Aadhaar as identity document for delivery of services or benefits or subsidies simplifies the Government delivery processes, brings in transparency and efficiency, and enables beneficiaries to get their entitlements directly in a convenient and seamless manner and Aadhaar obviates the need for producing multiple documents to prove one’s identity;

And whereas, the Ministry of Electronics and Information Technology (hereinafter referred to as the Ministry) in the Government of India is administering the Fee Reimbursement to Scheduled Castes and Scheduled Tribes under Manpower Development Scheme (hereinafter referred to as the Scheme), implemented through National Institute of Electronics and Information Technology (hereinafter referred to as the Implementing Agency) under Ministry of Electronics and Information Technology;

And whereas, under the aforesaid Scheme, financial assistance is given to the Implementing Agency to provide free of cost training (hereinafter referred to as the benefit) to the candidates belonging to the Scheduled Castes and the Scheduled Tribes (hereinafter referred to as the beneficiaries), who meet the criteria as defined in the extant Scheme guidelines, on the National Skills Qualifications Framework complied courses for the employability, entrepreneurship creation and to initiate and promote activities in Information and Communications Technology across the country;

And whereas, the aforesaid Scheme involves recurring expenditure incurred from the Consolidated Fund of India;

Now, therefore, in pursuance of the provisions of section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016) (hereinafter referred to as the said Act), the Central Government hereby notifies the following, namely:-

1. (1) Every beneficiary eligible for receiving the benefit under the Scheme shall be required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication.

(2) Every beneficiary desirous of availing the benefit under the Scheme, who does not possess the Aadhaar number or has not yet enrolled for Aadhaar shall have to apply for Aadhaar enrolment within thirty days of the commencement of the training, provided he or she is entitled to obtain Aadhaar as per the provisions of section 3 of the said Act and such persons may visit any Aadhaar enrolment centre (list available at Unique Identification Authority of India (UIDAI) website www.uidai.gov.in) for Aadhaar enrolment.

(3) As per regulation 12 of the Aadhaar (Enrolment and Update) Regulations, 2016, the Ministry through its Implementing Agency, is required to offer Aadhaar enrolment facilities for the beneficiaries who are not yet enrolled for Aadhaar, and in case there is no Aadhaar enrolment centre located in the respective Block or Taluka or Tehsil, the Ministry through its Implementing Agency shall provide Aadhaar enrolment facilities at convenient locations in coordination with the existing Registrars of UIDAI or by itself becoming UIDAI Registrar:

Provided that till the time Aadhaar is assigned to the beneficiary, benefit under the Scheme shall be given to such beneficiaries, subject to production of the following documents, namely:-

(a) (i) if enrolled, Aadhaar Enrolment ID slip of the beneficiary; or
(ii) a copy of request made for Aadhaar enrolment, as specified in sub-paragraph (2) of paragraph 2; and

(b) any of the following documents:

(i) Bank Passbook or Post office Passbook with photo; or (ii) Voter identity card; or (iii) Ration Card; or (iv) Permanent Account Number Card; or (v) Driving license issued by the Licensing Authority under the Motor Vehicles Act, 1988 (59 of 1988); or (vi) MGNREGS Card; or (vii) Kisan Photo Passbook; or (viii) Passport; or (ix) Certificate of Identity having photo of such person issued by a Gazetted Officer or a Tehsildar on an official letter head; or (x) Any other document as specified by the Ministry:

Provided further that the above documents shall be checked by an officer specifically designated by the Ministry for that purpose.

2. In order to provide convenient and hassle-free benefits to the beneficiaries under the Scheme, the Ministry through its Implementing Agency shall make all the required arrangements including the following, namely:-

(1) Wide publicity through media and individual notices shall be given to the beneficiaries to make them aware of the requirement of Aadhaar under the Scheme and they may be advised to get themselves enrolled at the nearest Aadhaar enrolment centres available in their areas, in case they are not already enrolled. The list of locally available enrolment centres shall be made available to them.

(2) In case, the beneficiaries under the Scheme are not able to enrol for Aadhaar due to non-availability of enrolment centres in the vicinity such as in the Block or Taluka or Tehsil, the Ministry through its Implementing Agency shall provide Aadhaar enrolment facilities at convenient locations, and the beneficiaries may be requested to register their requests for Aadhaar enrolment by giving their names, addresses, mobile numbers and other details as specified in the first proviso to sub-paragraph (3) of paragraph 1, with the designated officials of the Ministry or Implementing Agency or through the web portal provided for the purpose.

(3) In case, the beneficiaries under the Scheme who have enrolled for Aadhaar, however, are not able to produce Aadhaar number for any reason whatsoever, the Ministry through its Implementing Agency shall provide “Search My Aadhaar” facility through UIDAI’s Enrolment and Update Client by facilitating Aadhaar enrolment facilities at convenient locations, and the beneficiaries may be requested to search their Aadhaar in assisted mode by giving their name, address, mobile number, finger-prints and other details, with the operator required to search beneficiary’s Aadhaar, subject to the provisions of the said Act and regulations made thereunder, with respect to restriction on sharing, circulating or publishing of Aadhaar number.

3. In all cases, where Aadhaar authentication fails due to poor biometrics of beneficiaries or due to any other reason, the following exception handling mechanisms shall be adopted, namely:-

(a) in case of poor fingerprint quality, IRIS scan facility shall be adopted for authentication, thereby the Ministry through its Implementing Agency make provisions for IRIS scanners along with fingerprint scanners for delivery of benefits in a seamless manner;

(b) in case of difficulty in fingerprints or IRIS authentication of senior citizens of the beneficiaries, face authentication shall be used. The Ministry through its Implementing Agency shall make arrangements for face authentication wherever feasible, for those beneficiaries whose other modes of authentication fail;

(c) in case of biometric authentication through fingerprints or IRIS or face authentication is not successful, wherever feasible and admissible authentication by Aadhaar OTP or TOTP with limited time validity, as the case may be, shall be preferred;

(d) in all other cases where biometric or OTP authentication is not possible, benefits may be given on the basis of physical Aadhaar letter whose authenticity can be verified through the QR code printed on the Aadhaar letter. For this, the Ministry through its Implementing Agency shall provide QR code readers at point of service delivery to read QR code printed on Aadhaar Letter on E-Aadhaar which allows verifying the authenticity of Aadhaar Card in offline manner. This QR code shall preferably be read through Secure QR code reader developed by UIDAI as it provides digitally signed details of Aadhaar Holder. In all such cases the benefits may be provided after duly recording the transaction in the exception handling register made for this purpose, which is to be reviewed and audited periodically by the Ministry. Maintenance of these registers and periodic inspection will be an essential component of exception handling mechanism.

4. This notification shall come into effect from the date of its publication in the Official Gazette in all the States and Union territories except the State of Jammu and Kashmir.


Ministry of Information and Electronics Technology 

[Notification dt. 10-08-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Ranjan Gogoi, CJ and RF Nariman, J has refused to re-open the National Register of Citizens (NRC) process in Assam.

The Court elaborately discussed the NRC exercise as below:

  • Section 6A of the Act which was inserted with effect from 7th December, 1985 by the Citizenship (Amendment) Act, 1985 (Act No.65 of 1985), carves out a special category of citizens in the State of Assam.
  • In view of the special category of citizens so created a special procedure came to be prescribed by Rule 4A of the 2003 Rules read with the Schedule thereto in the matter of preparation of National Register of Indian Citizens in the State of Assam whereby the claims of all persons (including persons born in India) for inclusion in the NRC were to be related to the entries 19 either in the National Register of Citizens 1951 or any of the electoral rolls prepared upto the midnight of the 24th day of March,1971 or on the basis of any of the additional documents referred to earlier.
  • The above said procedure was necessitated on account of a large number of persons who acquired citizenship by virtue of Section 6A of the Act without being actually born within the territories of India. Yet, as Section 6A of the Act confers citizenship on such person(s), a special procedure, indicated above, has to be devised for inclusion in the NRC in the State of Assam. This is what was agreed upon under the Assam Accord which led to the introduction of Section 6A in the Citizenship Act, 1955 with effect from 7th December, 1985.

Considering the abovementioned procedure, the Court said,

“The entire NRC exercise having been performed on the aforesaid basis, the same cannot be now ordered to be reopened by initiation of a fresh exercise on certain other parameters that have been suggested on behalf of the intervenors/applicants on the strength of the provisions of Section 3(1)(a) of the Act.”

On the issue of the maintenance of security of the NRC data, the bench directed the Central Government to enact an appropriate regime for on lines similar to the security regime provided for AADHAR data. Only thereafter, the list of inclusions and exclusions shall be made available to the State Government, Central Government and Registrar General of India.

The Court further directed,

  • only hard-copies of the supplementary list of inclusions be published at the NRC Seva Centers, Circle Offices and Offices of the District Magistrates of the State.
  • the list of exclusions be published on 31st August, 2019 shall be published only on on-line and shall be family-wise.

[Assam Public Works v. Union of India, 2019 SCC OnLine SC 1025, decided on 13.08.2019]

Hot Off The PressNews

As reported by ANI, Rajya Sabha in today’s session has passed the Aadhaar and Other Laws (Amendment) Bill, 2019.

A bill to allow voluntary use of Aadhaar as proof of identity for opening bank accounts and getting mobile connections which were passed by Lok Sabha last week has today, i.e. 08-07-2019 been passed by Rajya Sabha

The said bill will amend the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and further to amend the Indian Telegraph Act, 1885 and the Prevention of Money-laundering Act, 2002.

[Please refer the link for the bill: Aadhaar and Other Laws (Amendment) Bill, 2019]

 

Case BriefsHigh Courts

Bombay High Court: Providing relief to a lone Mumbai Port Trust employee who refused to link his salary account to Aadhaar, a Division Bench comprising of Akhil Kureshi and SJ Kathawala, JJ. has directed the trust to release his salary which was pending for over 30 months. The Court added interest of 7.5% per annum for delaying/withholding the payment of salary.

In December 2015, the Trust had issued a circular directing all employees to register their Aadhaar, failing which salary will not be credited to their account. The petitioner refused and approached the court to appeal for withdrawal of this circular. At this time, another petition was going on in the Supreme Court challenging the linking of Aadhaar with various schemes and payments. The respondent side contended that out of 800 employees, the petitioner was the sole employee who had objected to the linking.

The Court held, that even as a sole objector he had the right to dissent and the Port Trust had not been able to justify by what authority they were upholding his salary just because the matter was pending in the Supreme Court. Now that the Supreme Court has released its verdict in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the trust should waste no more time in releasing his dues along with the penalty of interest for withholding the salary without any authority. [Ramesh R. Kurhade v. Financial Advisor and Chief Accounts Officer, Establishment Section, 2019 SCC OnLine Bom 1060, decided on 20-06-2019]

Legislation UpdatesNotifications

In exercise of the powers conferred under sub-section (2) of Section 139 AA of the Income Tax Act, 1961, the Central Government, hereby notifies that every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to the Principal Director General of Income-tax (Systems) or Principal Director of Income-tax (Systems) in the form and manner specified in Notification no. 7 dated 29th of June, 2017 issued by the Principal Director General of Income Tax (Systems) by 30-09-2019.

2. This notification shall not be applicable to those persons or such class of persons or any State or part of any State who/which are/ is specifically excluded under sub-section (3) of Section 139 AA of the Act.

3. However, notwithstanding the last date of linking of Aadhaar number with PAN being extended to 30-09-2019 in para 1 above, it is also made clear in Circular o. 6 of 2019 that w.e.f. 01-04-2019, it is mandatory to quote Aadhaar number while filing the return of income as required under Section 139 AA (1)(ii) unless specifically exempted as per any notification issued under sub-section (3) of Section 139 AA of the Act. It is also made clear that the returns being filed either electronically or manually cannot be filed without quoting the Aadhaar Number.

Notification No. 31/2019

Dated 31-03-2019

Central Board of Direct Taxes

Legislation UpdatesRules & Regulations

No.K-11022/632/2019/Auth-UIDAI (No. 1 of 2019)—In exercise of the powers conferred by sub-section (1) and sub-clause (f) of sub-section (2) of Section 54 read with Section 8 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and Regulation 12 (7) of the Aadhaar (Authentication) Regulations, 2016, the Unique Identification Authority of India hereby makes the following regulations, namely:—

1. Short title and commencement—
(1) These regulations may be called the Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019 (No. 1 of 2019).
(2) These shall come into force from the date of their publication in the Official Gazette.

2. Pricing of Aadhaar Authentication Services—
(1) Aadhaar authentication services shall be charged @ Rs 20 (including taxes) for each e-KYC transaction and Rs 0.50 (including taxes) for each Yes/No authentication transaction from requesting entities;

(2) Government entities and the Department of Posts shall be exempt from Authentication transaction charges; and

(3) Scheduled Commercial Banks engaged in providing Aadhaar enrolment and update facilities in accordance with Gazette Notification no. 13012/79/2017/Legal-UIDAI (No. 4 of 2017) dated 14th July 2017 shall be exempt from Authentication transaction charges. However, such banks, which fall short of the Aadhaar enrolment and update targets, as communicated from time to time, will be charged in proportion to the shortfall in achieving the target.

(4) The above charges shall be in addition to the License fees and financial disincentives, as applicable.

(5) Details of the transaction error codes and its charges shall be issued separately.

3. Discontinuation of authentication and e-KYC services—
(1) If an existing requesting entity [except those exempt under Regulations 2(2) and 2(3) above], continues to use Aadhaar authentication services beyond the date of publication of these Regulations, it shall be deemed to have agreed to the specified authentication charges. The entities shall be required to deposit the authentication transaction charges within 15 days of issuance of the concerned invoice based on the usage. The delay in payment beyond 15 days shall attract interest compounded @ 1.5% per month and discontinuation of authentication and e-KYC services.

(2) In case a requesting entity does not wish to pay authentication transaction charges, it shall discontinue the use of Aadhaar authentication services and intimate its decision to the UIDAI immediately, and it shall surrender its access to the authentication facilities as per Regulation 23 of the Aadhaar (Authentication) Regulations, 2016. However, the transaction charges as applicable till the date of deactivation of access to authentication services shall have to be paid.

The Unique Identification Authority of India

Hot Off The PressNews

Petitioner named Imtiyaz Ali Palsaniya has filed for a review petition in the Supreme Court against the Constitution Bench decision in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), 2018 SCC Online SC 1642.

In the1448-pages detailed judgment, 5- Judge Bench comprising of former CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan, JJ. by a majority of 4:1, declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy.

The said judgment has been challenged by the petitioner who stated that ‘various grounds urged in applications filed weren’t considered by the Court.

[Source:https://theleaflet.in]

Hot Off The PressNews

Vide its orders dated 31.07.2017, 31.08.2017, 08.12.2017 and 27.03.2018, CBDT had allowed time till 30th June, 2018 to link PAN with Aadhaar while filing the tax returns. Upon consideration of the matter, CBDT vide order dated 30.6.2018 under Section 119 of the Income Tax Act, 1961 has further extended the time for linking PAN with Aadhaar till 31st March, 2019.

Ministry of Finance

[F.No.225/270/2017/ITA.II]

Hot Off The PressNews

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.

_________________________________

  • 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.

_________________________________

  • 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.

_________________________________

  • 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.

____________________________________________________________________________________________________________________________

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

Hot Off The PressNews

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”.

____________________________________

  • 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.

____________________________________________________________________________________________________________________________

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.

____________________________________________________________________________________________________________________________

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!

____________________________________________________________________________________________________________________________

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.

___________________________________

  • 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

On Day 32 of the Aadhaar Hearing, Senior Advocate Rakesh Dwivedi continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of reasonable expectations of privacy.

Below are the highlights from Day 32 of the Aadhaar Hearing:

  • Dwivedi:
    • Privacy is strongest in the inner sanctum of the mind, but shrinks as you move outside into the world. It has to be considered whether private life is protected outside your home, because people frequently give up their privacy in these conditions. the US and UK Supreme Court treat reasonable expectation of privacy as very significant, and that the Indian position is closer to this.
    • Tthe only question is whether the restriction on the right to privacy is proportionate to the government purpose. Nothing else can be taken into account. Petitioners have applied the wrong standard in arguing that the restriction on rights should be least intrusive.
    • In the public sphere, the right to privacy is diluted. The entire Aadhaar activity is in the relational and public sphere. He says that demographic information and facial photograph don’t have any privacy concerns. There is no reasonable expectation of privacy. At the requesting entity point, it’s all dispersed and decentralised, and so it doesn’t deserve the level of protection that the CIDR is given.
  • Chandrachud, J: The point seems to be that core biometric information has higher privacy concerns. That does not mean that there is no privacy concern elsewhere.
  • Dwivedi:
    • I agree but  the reasonable expectation of privacy varies according to context. Petitioners have cited no judgments involving identity cards. 120 countries use biometric passports and nineteen European countries use biometric ID cards. The CJEU or the ECHR have never expressed any concerns with biometric ID cards.
    • In the privacy judgment, it has been said that if you willingly put up your personal information on Facebook, then you may not have a right to privacy in that information.
    • Safeguards can be read into Article 21. Degrees of safeguards will vary – for nuclear plants it will be one, and for CIDR is another.
    • The standard must be “adequate safeguards”. The risk can never be zero.
    • There must be constant vigilance. We are always improving and upgrading our safety, and after the Srikrishma Report, we will upgrade more.
    • We have provided a complete bar on sharing, and what is available with the REs is totally dispersed. The extent of privacy is much more diluted. And there is consent and a bar on using for anything other than authentication. If there are breaches, then point them out to us. But petitioners don’t want to improve it, they just want to knock it off.
    • The data protection draft law will be out by May.
  • Chandrachud, J: One area that requires consideration is remedies for breaches.
  • Dwivedi:
    • The IT Act provides for penalties, and penalties have been imposed on Airtel etc.
    • The Court and the government should work in coordination as the two great wings of State, and not in opposition. The sword should be unsheathed only in the last resort. The Court should be like a doctor and save the patient.
    • Member States have been left free to make laws.
  • Chandrachud, J: That is subject to the test of proportionality
  • Dwivedi:
    • I am not disputing that.
    • EU is now contemplating a biometric ID card.
  • Chandrachud, J (Jokes): Are they planning to seed it with Aadhaar?
  • Dwivedi: UIDAI collects only limited technical metadata.
  • Chandrachud, J: Is it necessary to retain metadata? Why do you have to retain it?
  • Dwivedi: It’s important to exercise control over the RE. There is no data about location or purpose of transaction, but only about the system, and that’s required for audits.
  • Sikri, J:  So you’re not collecting metadata about the person but only about the machine?
  • Dwivedi: Yes. We don’t know location or purpose, just device ID.
  • Chandrachud, J: Your argument might be supported By Regulation 26 proviso, which bars storing the purpose of a transaction.
  • Dwivedi: Yes, in any case the Aadhaar Act bars storing of purpose.
  • Chandrachud, J: What is the meaning of “authentication transaction data”, which can be stored under Regulation 26?
  • Dwivedi: It’s the data pertaining to a specific transaction, and there is a bar on storing purpose.

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To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click 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/gautambhatia88

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