Case BriefsForeign Courts

Supreme Court of Sri Lanka: In this appeal violation of Right to Equality was contended which was even upheld by the bench of Sisira J. De Abrew, A.C.J. and L.T.B. Dehideniya and P. Padman Surasena, JJ.

In the pertinent case, appellant complained that his fundamental rights guaranteed under Article 12(1) of the Constitution has been violated by Respondent 1. His child was not admitted to Grade I in Vishaka Vidyalaya, Colombo in the year 2014 even after the directions of the Respondent 2 to admit his child in the School.

The Court considered the material facts and directed the 1st respondent to comply with the direction within one month from the date of judgment and asked 2nd respondent to undertake the responsibility of informing further.[B.A. Nulara Nethumi v. S.S.K. Awiruppola, 2019 SCC OnLine SL SC 2, Order dated 24-01-2019]

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

Below are the highlights of Day 9 of the hearing:

Discussion on exclusion of people due to lack of Aadhaar:

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

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

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

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

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

Discussion on Section 7 of the Aadhaar Act, 2016:

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

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

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

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


Hot Off The PressNews

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

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

Below are the highlights from Day 8 of the hearing:

Submissions on misuse of Aadhaar:

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

Submissions on the technical aspect of Aadhaar: 

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

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