This post is essentially a compilation of tweets from Gautam Bhatia, Prasanna and SFLC to understand how the Aadhaar hearing happened in the Supreme court.
Day 5: 30 Jan ’18
Shyam Divan, Senior Advocate and counsel for petitioners arguing.
- Aadhaar Bench assembles. Shyam Divan to continue.
- Shyam Divan recaps the argument so far on surveillance. SD discusses the judgment of the European Court of Human Rights in Zakharov v Russia.
- Zakharov was a case about interception of telephone communications in Russia. It was argued that this interception violated Article 8 of the European Court of Human Rights.
- Zakharov held that if there was a system of surveillance in place, without effective remedies, an individual did not have to specifically show that she herself was under specific surveillance. The existence of legislation itself was a violation of privacy rights.
- Zakharov stressed the importance of foreseeability, and the requirement of clear rules for specifying when and to what extent surveillance was permissible. There could be no unfettered power. In order for this, the nature of offences must be set out which can justify surveillance, rules for storage and deletion of information etc
- “In view of the risks that surveillance has of undermining democracy, its necessity must be demonstrated.”
- The ECHR held that the Russian system of interception did not meet adequate safeguards. There was no clarity on when surveillance could be resorted to, there was automatic storage of data, no requirement as to deletion. There was a risk of arbitrary use.
- Justice Sikri points to the paragraph where Russia argued that there were criminal remedies involved, but the ECHR said that even these remedies depended on the person actually could prove injury.
- Tells Shyam Divan “this supports your case.”
- Shyam Divan reads out the judgement in Digital Rights Ireland vs Minister of Communication.
- This case was about retention of data. What was at issue was European Directive 2006/24, discussed in paragraph 16 of the judgment.
- Reads from para 25 of the judgment.
- Reads out the Court’s discussion on proportionality.
- The Court held that the data retention directive exceeded proportionality and was therefore invalid.
- Shyam Divan cites S and Marper v UK, an ECHR case concerning the retention of DNA samples and fingerprints even after criminal proceedings had ended with an acquittal.
- The UK Courts had said that mere retention did not violate privacy, and if it did, then it was a very mild form of interference.
- The ECHR disagreed, holding that fingerprints and DNA samples constituted “personal data.”
- The ECHR discussed the issue of fingerprints specifically, and said that the retention of fingerprints may in itself give rise to important private life concerns.
- The ECHR said that retention of fingerprints constituted an interference with the right to respect for private life.
- The ECHR then asked whether this retention was necessary in a democratic society. This would be the case if there was a pressing social aim, and if the interference was proportionate.
- ECHR said that the protection of personal data is fundamental to the enjoyment of private life.
- The ECHR said that the data should not be stored for any longer than necessary for the purpose. The interests of the data subjects and the community might be outweighed by the interest in prevention of crime, but a Court must scrutinise it carefully.
- The ECHR found that the blanket and indiscriminate retention of data, even of people who had not committed or were not suspected of a crime, was a disproportionate interference with privacy.
- It did not strike the appropriate balance between individual rights and social goals.
- Shyam Divan takes the Court through the Union of India’s first counter-affidavit, signed by the Assistant-Director of UIDAI.
- In the affidavit UIDAI denies that agencies of the State will track people or use it for surveillance. It says that “by design the technology architecture of UIDAI precludes the possibility of tracking. The system is blind to the use at the front end.”
- UIDAI says in its affidavit that “neither UIDAI nor any agency or department will be able to use Aadhaar to track or surveil. A user department of the govt or agency will only have information pertaining to its own domain. There will be no 360 degree view of an individual.“
- Says that the UIDAI has not dealt with the particulars of the affidavits filed by Kelekar and D’Souza, which specified how tracking can be done (he had read out these affidavits on the previous day).
- Then reads out UIDAI’s document titled State Resident Data Hub: Institutional Framework, dating back to April 2012.
- Right from 2012, UIDAI encouraged the establishment of State Resident Data Hubs, and there was budgetary allocation, for various state governments.
- Reads out the Introduction. “UIDAI envisages this to provide the states the ability to manage resident data.”
- “SRDH software is deployed, and Aadhaar data is added, and enriched with local data from other sources. For example, Kerala’s KYR+.Connect with other databases in the state for a custom view. UIDAI aims to provide the states with a guiding model.“
- Says that there was no statutory framework for this then, and still isn’t.
- Goes through the SRDH website of Madhya Pradesh. “MP SRDH is a centralised data repository containing demographic detaills… from data sets of different govt departments.” Point 6: “View 360 degree profile of the resident.”
- Note the contrast. UIDAI specifically said 360 degree view is impossible.
- “MP says that this will be the “single source of truth as it maintains demographic and biometric information.” So biometrics are not only with the CIDR. “Single source of truth.” Remember the Ministry of Truth in 1984? Points to the authorisation of seeding and reverse seeding.
- Takes the Court through the SRDH of Odisha. Says that the whole point is to store and integrate information for a 360 degree view, which is what UIDAI specifically denied on Affidavit. He shows a diagram of the 360 degree view.
- Justice Chandrachud says that the diagrams show that there is a general database for the disbursement of social welfare benefits. 360 degree view may be a catchword used by consultants.
- Says in Europe you don’t have this kind of State involvement in social welfare benefits.
- Shyam Divan says that in Europe it’s actually much greater.
- Justice Chandrachud says that if the government is confining itself to social welfare benefits, and checking if people receiving benefits are alive or not, and not profiling political beliefs, can’t it have a legitimate concern in ensuring that the identity of beneficiaries is maintained.
- Shyam Divan says that that concern cannot justify aggregation.
- Justice Chandrachud says that aggregation might be in a broad sense or in a limited sense. Aggregation for ensuring social welfare benefits, why wouldn’t that pass muster?
- Shyam Divan says he will address this after finishing with the SRDHs.
- Comes to the Haryana SRDH.
- Justice Chandrachud points to the point about savings due to weeding out ineligible beneficiaries, and says that this is what is concerning the Court. The Court will have to strike a balance.
- Shyam Divan talks about Haryana’s SRDH. He then comes to Telangana’s SRDH.
- On the SRDH you get citizens names, location, and Aadhaar numbers.
- Says that in our country, you can judge people’s communities from their names.
- Says that you know all this because of Aadhaar, because the information is aggregated.
- Says that you are all students of history and can anticipate the future, you know what happens when the names and location of communities in this fashion are available.
- Justice Khanwilkar says that it only shows the place where you are generally resident, not resident at that particular moment.
- Shyam Divan says he will summarise his points on the State Resident data hubs.
- First, there is no authority of law. These operations result in profiling and require to be removed.
- Secondly, the collation of data in state hubs enables religious, caste-based and community profiling, and potential targeting of individuals, and a pervasive loss of privacy.
- Thirdly, as held in the privacy of judgment, aggregation of data results in the destruction of privacy rights. There is a grave danger in allowing the State to amass this much power.
- Bench rises for lunch.
- Aadhaar Bench assembles.
- Shyam Divan takes the Court back to Kelekar’s affidavit, which discussed how IP acts as a geographical locator. The second concept is that of a unique device ID.
- Says that he will illustrate with respect to the Kerala Dairy Farmer Welfare board, which has a pension scheme connected to Aadhaar.
- Shows screenshots of the website. The columns include Log ID, Aadhaar Number, Validation Success (Y/N, biometric mismatch), Client IP (approximately a range of two kilometer radius can be located), request date, unique device ID (which takes you within 200 – 500m of where it is registered), UBC ID.
- This shows you that “X” person has tried to secure an authentication from these IPs on different dates, and each time she failed. Another person “Y”, has also made three attempts, which failed. This is what UID knows. Name, number, whether it failed and reason for failure and it knows where you are located within 200 – 500 m in real time. This number has been mapped onto GoogleMaps. On these three different days, X has traveled to different parts of Kerala, trying to get authenticated. We are able to locate the dates on which she has traveled, and the time of authentication.
- Says this is real-time mass surveillance being carried on by the states, and can’t be allowed.
- Comes to the information that the Dairy Board has. There is also a Block ID – which shows the Taluq. Society ID – the postal locality. Name, UDCID.
- The largest area is the district ID. Allapura District. Block ID – Ambalapura. Locality – Illichera. All this is known.
- Justice Chandrachud says that the Dairy Board may be concerned about some poor man trying to get his pension, and following it up to ensure targeted delivery.
- Shyam Divan says that this is about surveillance.
- Justice Chandrachud says that there is no surveillance in making sure that somebody gets their pension.
- Shyam Divan says that the surveillance is though tracking movement.
- Justice Chandrachud says that when you have your iPhone is in your pocket you can be tracked.
- Justice Bhushan says how can you have surveillance just by knowing this information.
- Shyam Divan says that mass surveillance means that whenever an authentication takes place you can locate wherever the person is.
- Justice Bhushan says that when you use ATM card, you can be tracked.
- Shyam Divan says that in the case of the ATM, only the bank knows. Under Aadhaar, you have 139 different schemes, and S 57 allows for more – a full electronic trail from morning to evening.
- Says that this would be the envy of North Korea.
- Justice Chandrachud says that it is also the envy of the World Bank and The Economist.
- Says that this Dairy Board example is an example of the positives of Aadhaar, because it allows for targeted delivery, and has been praised by the World Bank.
- Chief Justice of India says that Mr Divan is saying that the shadow is becoming larger than the man, and that man is being deprived of his solitary splendour.
- Justice Chandrachud says that one should not get carried away with the rhetoric of surveillance, and everyone must come to the brass tacks.
- Shyam Divan says that surveillance is at the core of this case. The meaning of surveillance is the tracking of citizens across the day and across their lifetimes.
- Says that this is not just about the Kerala Dairy Board, but about how that is a microcosm of the program as a whole.
- Says that the point is about concentration of power that is enabled through the ability to carry out surveillance.
- Repeats that the point is not whether someone is actually sitting and tracking you, but the fact that the program enables an architecture of surveillance.
- Says that if the word “surveillance” is a problem, the word “invasiveness” will also suffice.
- Says that before he goes on to the next point, because it is 30th January, he will briefly talk about Gandhi’s satyagraha against the Transvaal ordinance. This Ordinance required Indians in Transvaal to register and give fingerprints, on pain of imprisonment and deportion. The certificate issued could be demanded at any point by an official. If an Indian wanted any government office to do anything for him, he had to show the certificate. Gandhi said that “I have never known legislation of this kind directed against free people anywhere.”
- Gandhi said that fingerprints were taken only from criminals, and this amounted to degradation. “The Ordinance brands the community as criminal and suspect.”
- Says that his next submission is on limited government, constitutionalism and the rule of law.
- Says that limited government stems from the preamble and the values underlying the constitution.
- Says that the State, which is created by the people, cannot expand to a point where it acquires such a huge dominance over the people.
- The second point is about the space a person has to live.
- Thirdly, can limited government require you to identify yourself in only one manner, and that manner requires you to part with biometrics. Can the State say you must identify yourself in this one manner, or I won’t recognise you any more?
- The last issue is that of dignity. We believe that this program violates both individual and collective dignity.
- Can all these rights that we have be made conditional on forced authentication through only one method?
- Says that the last part is good governance and rule of law. For seven years this program functioned under administrative notification that didn’t even mention biometrics.
- Justice Chandrachud asks whether, on the issue of rule of law, Article 73 would apply.
- Shyam Divan reads out Charles Evelyn Hugh’s remarks on the meaning of limited government.
- Explains the meaning of limited government under the Indian Constitution. He reads out State of MP vs Thakur Bharat Singh.
- Talks about the enunciation of constitutionalism in the I.R. Coelho judgment.
- Cites Y. V. Chandrachud’s judgment specifying that the social goals of Part IV of the Constitution cannot be achieved at the cost of fundamental rights.
- Bench rises. Will continue on Thursday.
