Final hearing of Aadhaar in Supreme Court – Day 1

Aadhaar – something which will impact our life as well as that of generations to come in India is being argued over in the Supreme Court right now. The mainline print media has done a shoddy job of covering it. Thankfully a few are live tweeting it. 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. It is going to be a very long one and will keep updating as the sessions happen. You can also read the summary on SFLC’s website here.

Final hearing in the matter of K S Puttaswamy v. Union of India [W.P.(C) No. 494/2012] and 28 other petitions tagged along with it, that challenge the overall constitutional validity of the Aadhaar (12-digit biometric identification number that is assigned by the Unique Identification Authority of India (UIDAI)) on various grounds. The first challenge to Aadhaar was filed in 2012 by retired justice K S Puttaswamy, former judge in the Karnataka high court.

Members of the five-judge Constitution Bench formed in December 17.

• Led by Chief Justice of India, Dipak Misra
• Justice D.Y. Chandrachud
• Justice A.K. Sikri
• Justice A.M. Khanwilkar
• Justice Ashok Bhushan

A few main counsel for Petitioners. The full list can be viewed in the document here.

• Senior Advocate: Shyam Divan
• Senior Advocate: Arvind Datar
• Senior Advocate:  Vibha Makhija
• Senior Advocate: K.V. Viswanathan

For the Government & UIDAI

• Attorney General: K.K. Venugopal
• Additional Solicitor General Tushar Mehta

Day 1: 17 Jan ’18

Shyam Divan, Senior Advocate and counsel for petitioners arguing.

• Aadhaar bench assembles.
• Shyam Divan to start.
• The Attorney General proposes that time be allocated counsels for arguing.
• Shyam Divan says that the issue is extremely complex.  Says that they will be able to provide an estimate only by the next week.
  • Outlines how he will proceed with the arguments.
    • Says that the first challenge is to the Aadhaar project. “We will set out before you what the Aadhaar project is all about.”
    • The next issue is the Aadhaar Act, which seeks to ratify the Aadhaar programme. The statute is under challenge. The statute covers part of the project, but not all of it. So the two issues are separate.
    • Then there is the issue of subordinate legislation, collateral laws, and various declarations – such as I-T Act and PMLA Rules and other circulars, notifications, schemes etc.
  • Says that he will begin by giving a broad flavour of the case.
  • No democratic society has engaged in a program of such scope and scale. There are very few precedents to guide us. In part, this is because the programme challenged here is itself without precedent. No democratic society has adopted a programme that is similar in its command and sweep. There are few judicial precedents to guide us. The closest foreign cases favour us – have all been decided in favour of the citizen, repelling the invasive programme by the State.
  • The petitioners submit that if the Aadhaar programme is allowed to continue unimpeded, it will hollow out the Constitution, particularly the great rights and liberties it assures to citizens. A People’s Constitution will transform into a State Constitution.
  • Through a succession of marketing strategies and smoke and mirrors, the government had rolled out a program designed to tether every citizen to an electronic leash. As the Aadhaar programme expands, the extent of profiling will expand.
  • At its core, Aadhaar inverts the relationship between the citizen and the State. It diminishes the status of the citizen. Rights freely exercised, liberties freely enjoyed, entitlements granted by the Constitution and laws are all made conditional on a compulsory barter – acquiring an Aadhaar number. The State is empowered with a ‘switch’ by which it can cause the civil death of an individual. Where every basic facility is linked to Aadhaar and one cannot live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual.
  • Does the Constitution allow the State to have so much power? The Constitution is not a charter of servitude. Does the Constitution of India allow a program where every transaction is recorded? Does the right to privacy allow a citizen to protect her personal identity without giving up personal information to the State, as long as she chooses to identify herself in a reasonable manner?
• Shyam Divan’s Opening statement here.
  • Shyam Divan lays out the scope of the constitutional challenge.
    • Petitioners ask, in the alternative, for the right to opt out and have their data destroyed.
    • If the Aadhaar Act is upheld, then in the alternative, no citizen should be deprived of any right or benefit for the lack of an Aadhaar card.
  • Takes the Court through the list of dates.
    • Starts with the notification of 2009 that established the UIDAI.
    • For seven years, till 2016, we were functioning only under an administrative direction (had no mention of biometrics at all). There were no checks and balances.
    • The program was launched in September 2010 in Maharashtra.
    • A bill was introduced in Parliament in December 2010. This was very similar to what finally became the Aadhaar Act.
    • The bill was referred to the Standing Committee on Finance. Lacunae were pointed out pertaining to privacy, security, private players.
    • In 2012, many citizens filed PILs against the Aadhaar scheme. In 2013, a two judge bench referred the matter for final hearing, and made it clear that nobody should suffer from lack of an Aadhaar card.
    • In 2014, UIDAI itself filed a petition against a Bombay HC order that had directed it to disclose biometrics in a criminal case.
    • The interim order making Aadhaar voluntary was sustained through multiple hearings.
    • On 15th October 2015, the use of the scheme was partially extended.
    • Tells the Court about the Aadhaar Act, which was passed in 2016. In January 2017, notifications were passed making Aadhaar mandatory for multiple services.
    • Tells the Court about the amendments to the Income Tax Act, and the requirement of phone linking.
  • Aadhaar has been made mandatory for opening bank accounts, holding insurance policies, making transactions, mutual funds. Effectively today, you cannot live as a citizen of India without an Aadhaar.
  • The petitioners before you are people who work in the field. They work in rural India and study rural India. They have found that Aadhaar is operating as a system of exclusion.
  • People may not be able to come to enrollment centers. A large number of people do manual work. Their biometrics are not registered.
  • People are not in a position to leave home and go be authenticated and receive rations.
  • Sometimes you have to give the fingerprints twice or thrice. The person giving his fingerprints is not in a position to know whether or the first try, it’s worked, if the account has been debited.
  • There are petitioners who work with children and schools. Far before attaining the age of consent you are forced to register. For example, for attendance.
  • The third set of petitioners are former military personnel. They are raising concerns of national security.
  • These petitioners are people who understand what they are talking about. For example, one of the petitioners is Bezwada Wilson, who works with manual scavengers. He truly knows what Article 14 means.
  • I’m pointing this out because in the privacy hearing, the State said that these are all elitist concerns. They are not. There are genuine, weighty issues.
  • Takes the Court through the work and the qualifications of the petitioners, such as Sudhir Vombatkere (35 years in uniform), Bezwada Wilson (founder of Safai Karmachari Angolan), Shanta Sinha (headed the national commission for the protection of child rights), Dr Kalyani Sen (worked with migrant women and women farmers), Aruna Roy (former IAS, who resigned to work with the rural poor in Rajasthan, founder of MKSS), Nikhil Dey (worker with the MKSS), Colonel Mathew Thomas (active service with the Indian army), Justice Puttaswamy (former judge of the Karnataka HC). From the standpoint of exclusion, Reetika Khera and Jean Dreze, who work on the ground, have filed affidavits. Anand Venkat, a sophisticated security expert, has filed an affidavit. Petitioner profiles here.
  • Proceeds to explain the different aspects of the project. Begins with Biometrics. Distinguishes deterministic (relied upon exact matches, like CVV number or an OTP, to be sure of identity) procedures and non-deterministic probabilistic procedures and how a biometric match algorithms is inherently probabilistic, treating it as a deterministic one.
  • UIDAI has a probabilistic system. UIDAI captures all the ten fingerprints of the individual, a facial photograph, and the two irises. This data is stored. They have a template. The template scales the fingerprints. They then pick up, say, hundred distinctive points, called minutae. The UIDAI then sets a number – how many of those hundred points should match? If the number is set at 100/100, it will never work. So UIDAI has to make a value judgment. It can’t be too high, it can’t be too low. So you’re departing from a deterministic system from a probabilistic system.
  • The issue is this. If I have certain rights, then how can my enjoyment of those rights be made probabilistic? Where is the question of making something I am entitled to dependent upon probability?
  • Shows the Court images of how fingerprints are taken.
  • Reads the different actors in the enrollment process. Registrar, Enrollment Agencies, Enrollment operators etc. Takes the Court through the list of registrars and enrolling agencies. Enrollment agencies are private agencies. Takes the Court through the hierarchy of authorities under the Aadhaar programme.
  • Enrolment agency sends the captured data to the UIDAI. For seven years, this operated without any legal framework.
• Bench rises for lunch.
• Post lunch break, Shyam Divan goes through the composition of the UIDAI. Starts reading the 28 Jan 2009 notification.
• Justice Chandrachud makes the first intervention of the case. “This does not seem to be a labour heavy organisation.” Commenting on only 115 posts having been sanctioned.
• Shyam Divan says it is an important point insofar as all of the information is collected by private parties with negligible governmental control and oversight over this data.
  • Takes the Court through the scope, functions and responsibilities of the UIDAI.
  • Points out that in the pre-Act era, there was no mention of biometrics in the legal instruments that governed Aadhaar.
  • When you are picking up sensitive data for seven years, there must be some standard of governance.
• Justice Chandrachud notices that there is no sanction for collecting biometrics. He asks Shyam Divan if it is his contention that all info collected between 2009 and 2016 is unlawful.
• Shyam Divan says we want to go slowly and that is far ahead. Says he has to emphasise the broader point and that both the concept and implementation have no lawful sanction.
• Justice Ashok Bhushan says that the guidelines for generation and assignment of UID are broad and might have covered everything including biometrics.
• Shyam Divan says that biometric collection was patently illegal, and that illegality was not cured by the passing of the Aadhaar Act.
• Justice Sikri asks whether the result of illegality would be that the database (data between 2009 and 2016) has to be destroyed.
• Shyam Divan says yes. SD says he will come to the final relief much later.
• Shyam Divan explains how authentication works at, for example, an airport.
  • Says that the biometric reader may or may not have a GPS. Because of the GPS it is possible to know that at such and such time, MR X entered the airport. Even when you have no GPS, the fingerprint reading is transmitted to the CIDR, and can be tracked back.
  • Two things capable of being known. One – that there was authentication at such and such time. And two – because of the GPS, the location.
  • When you scale this up, you get a complete profile of the individual’s actions.
• There is a discussion between Justice Chandrachud, Justice Sikri and Shyam Divan on the way authentication happens.
  • Justice Chandrachud asks whether there is any tracking back, or only verification.
  • Shyam Divan says we are far ahead but his short point is that there is an electronic trail of every authentication transaction. And that when these transactions are built up over time a full profile can be built.
  • Justice Sikri says that when you apply for a visa they take your boundaries and match it when you enter the NY airport, so they also know when you’ve done that.
  • Shyam Divan says no one is building up a profile as it is in the case. Says that the question is whether there is an electronic trail, and whether that trail reveals location.
    • Says that it is very important to understand that this is not an isolated instance but something that builds up over time.
    • Says that while border control may take your biometrics, it is restricted to that. You’re not required to submit your fingerprints for various transactions throughout the day.
    • The difference is between a pervasive and a non-pervasive system. He takes the example of mandatory Aadhaar for mid-day meals.
    • The system is one that throughout the day, there will be an electronic trail. Justice Chandrachud had earlier asked a question about cross-linking of databases. Shyam Divan says that Aadhaar enables that, and that allows for profiling.
    • The question is not whether they are actually tracking or not. The question is whether such an architecture is possible.
  • Justice Chandrachud says that would this be taken care of if the data was used only for the purpose for which it was collected.
  • Shyam Divan says that he will explain why that is not what is being done.
    • Says that the core issue is that the design itself is bad. It enables State domination.
    • Says that while at one point UIDAI projected that the purpose of Aadhaar was to give everyone an identity, RTI revealed that the actual number of people for whom Aadhaar was the first ID, was very small.
    • Returns to his submissions, tracing the chronology of the program
• Chief Justice asks Shyam Divan to present the case theme-wise who agrees. He says that he needs some time, however, to explain what the project is about and what it does.
• Justice Chandrachud asks why the State can’t say that biometrics are needed to prevent social welfare leakage and go to the right persons. Shyam Divan says he will address that issue in detail, but flags the argument that the outflow in terms of Aadhaar expenses is far more than savings.
• Shyam Divan says that the question will also remain that even if Aadhaar plugs leakages, if it is a proportionate method of doing so.
  • Returns to his submissions on the chronology of the program.
  • Points to some of the distinctions between the old Aadhaar Bill and the Aadhaar Act.
  • Takes the Court through the Standing Committee on Finance’s report on the old bill.
  • Points to the concerns expressed by the Standing Committee on issues of privacy, security, and data theft.
  • Points to the Standing Committee’s concerns with respect to manual labourers.
  • Points to the Committee’s observation that the United Kingdom revoked its national biometric database.
  • Points to the Committee’s concerns about Civil liberties, such as surveillance and profiling, in the absence of a data protection law. He points to the concerns expressed by the NHRC about privacy.
  • Points to the Standing Committee’s observation about the lack of clarity about the financial coats of the project.
• Justice Chandrachud points to para 60 of the Standing Committee report that raises concerns about efficacy when scaling up such a project to a national scale.
• Shyam Divan says that 6.23 crore biometrics have been rejected. These are not dishonest people or ghosts. As the project scales up more, this number will only continue to increase.
  • Comes to the observations and recommendations of the Standing Committee, which points out that pending a law, any executive action would be unethical and in violation of parliamentary prerogatives.
  • Points to the Standing Committee’s concerns about illegal immigrants. He quotes the Standing Committee’s observation that the scheme appears not to be well thought-through.
  • The UK abandoned its identity system because it was “unsafe, untested…. and could be a threat to personal rights.” (still quoting the Standing Committee)
• Chief Justice asks how the Standing Committee report from 2010 is relevant to the 2016 Act.
• Shyam Divan says it explains many of the problems that continue to persist.
• Chief Justice raises the issue of the money bill. P. Chidambaram stands up and explains the position with respect to the money bill argument. Arvind Datar also explains the position. Brief debate.
• Shyam Divan resumes. Quotes the Standing Committee report saying that there is no comparative costing between the Aadhaar scheme and other identity schemes, and criticising the heart nature of roll out, and warning that it might become dependent on private players.
  • Quotes the standing committee categorically saying that the (old) bill in its present form is unacceptable.
  • Takes the Court through some of the notifications after the Standing Committee report, and the passage of the Aadhaar Act. This completes the pre-Act chronology.
• Bench rises. Day 1 over.