Final hearing of Aadhaar in Supreme Court – Day 3


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 3: 23 Jan ’18

Shyam Divan, Senior Advocate and counsel for petitioners arguing.

  • Bench assembles.
  • Shyam Divan to continue the case for the petitioners.
    • Reads out the part of the privacy judgment -Para 300 – that warns of the dangers of profiling through integrating different sets of data. (This is Justice Chandradhud’s plurality opinion in the privacy judgment.)
    • Reads out the part of the privacy judgment that explains the concept of informational privacy and his right to be let alone.
    • Reads out the part of the privacy judgment that says that it is impossible to visualise in advance all the possible harms that can result from proliferating data sets.
    • Reads out the part of the judgment that says that there are complex issues surrounding big data and power.
    • Reads parts of Privacy Judgment which address the need for data protection, transparency, consent and data protection.
    • Reads out the part of the privacy judgment that spells out limitations on privacy
      • there must be a law, a statutory backing,
      • there must be a legitimate State aim, and
      • there restriction must be proportionate. Means adopted by legislature should be proportional to the object sought to be achieved.
    • Reads out the part of the privacy judgment that says that privacy is an integral element of the right to life, and that any limitation must be within the constitutional framework.
    • “Privacy is the constitutive core of human dignity and the foundation of ordered liberty. It recognises the individual’s right to control vital aspects of their life. It is not lost or surrendered merely by being in a public place.” “The interpretation of privacy must be flexible, to meet evolving challenges.” (from the judgment)
    • Reads out the part of the privacy judgment that says that privacy harms can result both from State and non-State actors.
    • Has finished reading Justice Chandrachud’s plurality opinion.
    • He reads out Justice Chelameswar’s concurring opinion in that judgment, which talks about the Constitution as securing freedom for every generation of Indians and about Constitution as a living document.
    • Reads out the part of Justice Chelameswar’s opinion that talks about the interrelationship of Articles 19 (freedom) and 21 (life and personal liberty) of the Constitution.
    •  Refers to the concurring opinion in para 371- Reads out Justice Chelameswar’s opinion defining privacy as consisting of “repose, sanctuary and intimate decision.”
    • Reads out the part of Justice Chelameswar’s judgment that says that fundamental rights are the firewall between the individual and concentrated State power.
    • Reads out the part of Justice Bobde’s concurring opinion that says that the Constitution transformed Indians from subjects under a monarch to citizens of a Republic.
    • Reads out the part of Justice Bobde’s opinion that grounded privacy in Indian intellectual thought, and then draws the link between privacy, dignity and liberty.
    • Reads out the part of Justice Bobde’s opinion that talks about privacy as a “traveling right” – it is a springboard to other rights, such as speech, association, assembly etc.
    • Reads out the part of Justice Nariman’s concurring opinion (Para 478) that argued that privacy is not an elitist concept.
    • Reads out the part of Justice Nariman’s opinion that observed that the State’s argument that privacy was an elitist concept seemed to spring from its defense of the Aadhaar Act.
    • Reads out the part of Justice Nariman’s opinion that says that in order to restrict privacy, the State’s interest must be “compelling.”
    • Lastly, reads out Justice Kaul’s concurring opinion, which observed that the fact that some people may not attach great importance to privacy is no reason to deny recognising it as a right.
    • Reads out the part of Justice Kaul’s judgment that talked about Edward Snowden, data profiling, the definition of data profiling and the potential of profiling far both good and evil.
    • Reads out the part of Justice Kaul’s judgment that talks about digital footprints, and the various kinds of powers that big data can exercise.
    • “Privacy is a constraint not just on State power but also non-State power.” (from Justice Kaul’s opinion)
    • Reads out the part of Justice Kaul’s judgment that defines probably as the right of the individual to control information about herself.
    • Reads out the part of Justice Kaul’s judgment that talks about how the privacy of children requires special concern.
    • Takes the Court through the part of Justice Kaul’s opinion that says that privacy is particularly important in a country as diverse as India.
    • Reads out the unanimous conclusion of the nine judges that held that privacy is a fundamental right under the Indian Constitution.
    • Hands over a two-and-a-half page summary of the privacy judgment to the Court.
    • The Supreme Court judgment affirms that privacy has always been a fundamental right, and the correct position has been established by a number of judgment after Kharak Singh.
    • Privacy is a natural right, a condition precedent to the enjoyment of any other fundamental right, it includes the right to control the dissemination of information.
    • The sanctity of privacy lies in its relationship with dignity. Privacy is a postulate of human dignity itself. This is the second element of the privacy judgment.
    • The third point is that privacy is integral to liberty and freedom. Privacy is more than a derivative right, it is a foundational right.
    • The fourth point is that privacy has both negative and positive components. In its negative concept, it protects the individual from the State. In its positive aspect, it casts an obligation upon the State to protect individuals from non-State actors.
    • The fifth point is that privacy is not an elitist concept. The subordination of civil and political rights to economic and social rights has been used for some of the most egregious violations in history.
    • The sixth point is that knowledge is power. Information in silos, when aggregated, can be a threat to freedom.
    • The seventh point is that privacy can be restricted only by a law that is just, fair, and reasonable.
    • The last point is the rule of law and the necessity of judicial remedies. These are our eight takeaways from the privacy judgment.
  • Bench rises for lunch.
  • Post lunch break, Shyam Divan begins with the Aadhaar Act.
    • Reads out the statement of objects and reasons of the Aadhaar Act, that talks about the need for proof of identity, identification of beneficiaries, transfer of benefits etc.
    • Says he will make his comments after taking the Court through the statute. He reads out the Preamble and the Long Title.
    • Takes the Court through the definitions clause, including the definition of “authentication process” and “authentication record”, which is a record of the time of authentication, the identity of the requesting entity, and the response.
    • Says that therefore, both the time and the requesting entity are known.
    • Reads out the definition of “benefits” and of “biometric information.” On definition of ‘Benefits’- benefit is not necessarily defined by the govt.
    • Reads out the definition of “core biometric information” (clause J), and compares it with clause g (“biometric information”), and says that both clauses are open-ended.
    • Reads out the definition of “enrollment agencies”, and says that even after the Act, the system remains privatised – appointment may be either by a appropriate authority or registrar.
    • Reads out the definition of “registrar”, and says that as in the pre-Act regime, the registrar need not be a government body.
    • Points to the definition of requesting entities, which are the entities that submit biometric information to the CIDR for authentication – again not a govt. entity but any agency or person, which includes private entities. Enables profiling of the individuals as statue requires to keep records of time and the requesting agency.
    • On ‘service’ & ‘subsidies’- definition is very wide and open ended.
    • Reads out the definition of resident (a person who has lived in India for at least 180 days in the last twelve months). “This is a rather curious definition.”
    • Takes the Court to Section 3, which is about enrolment. He says that the words used are “shall be entitled to obtain.” “Consequently, getting an Aadhaar number is a right, not an obligation.”
    • Reiterates his earlier point that the authentication process is probabilistic.
    • Points to the counseling requirement in Section 3. He says that the concept of informed consent, which is reflected by the counseling requirement, will become completely illusory if the mandatory character of Aadhaar is upheld.
    • Reads out Section 4. He reiterates the point that the enrolment procedure is completely compromised and has no oversight. The earliest forms had the method of self-verification. Now, under Section 4(3), the data can be used as proof of identity for any purpose.
      • Considering 49000 enrollers have been cancelled, what is the integrity of this data?
    • Reads Section 6, which provides for updation of data. He says that “biometric information changes over time.” This compromises the whole idea of uniqueness. He says he will develop this point later.
    • Reads out Section 7, which effectively allows Aadhaar to be made mandatory for receipt of benefits or services.
      • Says the proviso to it provides for an alternate method to avail benefits and services.
      • Says that this provision negates the right of the individual to identify herself in a reasonable alternative manner.
    • Reads out Section 8, which deals with requesting entities.
      • Submits that this section again gives a notion of alternative.
    • Goes through Section 10 wherein a centralised database is required to be maintained by UIDAI.
    • Takes the Court through Section 4, which establishes the UIDAI.
    • Points to Section 23, which lays out the powers and functions of the UIDAI.
    • Says that the UIDAI has been given vast powers, for example, to add to the biometric indicators (such as DNA), under regulations.
    • Says that the UIDAI is allowed to contract out the security of the database. He says this raises security concerns, and has been documented and shown in the record.
    • Says that the UIDAI has the power to deactivate an Aadhaar number. He says that this is effectively a power to deprive an individual of all her Civil rights. This is the amount of control they have over the individual.
    • Points to 23(3), which allows UIDAI to enter into memoranda of understanding with other bodies, public and private.
    • Comes to Chapter VI of the Aadhaar Act, which deals with protection of information.
    • Says that all the information the Act says you cannot share has already been shared (section 29).
  • Justice Chandrachud asks how a breach of the statutory provision affects the constitutionality of the statute itself.
  • Shyam Divan says that the statute is unconstitutional because it seeks to sanctify the Aadhaar program, which is incompatible with a free and open democratic republic.
    • Says that this argument will be developed further, and now he is trying to place some facts on record.
  • Justice Chandrachud says that there are two claims. First, that the program is unconstitutional. And secondly that there have been breaches that need to be plugged. He asks Shyam Divan if he will be making both arguments.
  • Shyam Divan says that the key question is whether an individual is entitled to protect herself by making a choice about which method to use to identify herself.
    • An individual has the right to 1. Not obtain an Aadhaar, 2. If she has an Aadhaar, then to not utilise it at every place. Avail alternatives instead.
    • The breaches help to substantiate the strength of this basic claim – the claim to make a choice.
    • Says that the concern is that you will end up having a complete surveillance society of this system in its present form is allowed to stand.
    • Returns to taking the Court through the Act.
    • Says that when you know the time and the requesting entity, the purpose of authentication will automatically be known.
    • Reads Section 32 of the Act with the Aadhaar Enrolment Regulations, which provide for storage of metadata.
    • Says that he is not saying that somebody is sitting and tracking you. The point is that the architecture is what enables a surveillance State.
  • Justice Chandrachud says that one important question that the Court will have to consider is that today we are living in a networked world where private parties are anyway tracking everyone in great detail. So how does the interpolation of an Aadhaar number really change anything.
  • Shyam Divan agrees that this is an important point, and says he will address it in some detail.
  • The Chief Justice formulates a set of propositions that he says are at the basis of this case.
  • Kapil Sibal stands up and says that a key issue is whether, in this networked world, a single form of identity, to which everything is linked, is safe.
  • Justice Chandrachud repeats an observation that he made the day before. He asks, “can’t you obviate the problem of aggregation of data sets by specifying in law that data can be used only for the purpose that it is collected.”
  • Shyam Divan resumes. He says that there is a crucial distinction between private parties and the State. With private parties I can opt out.
  • Justice Chandrachud asks, to what extent do you have an actual choice in today’s world, even with respect to data shared with private parties.
  • Shyam Divan says that the point is that the State has for more power with respect to an individual. Says he will demonstrate this when he talks about State Resident Data Hubs.
  • Justice Sikri says that one question is to what extent Aadhaar can be used.
  • Shyam Divan says that in a democracy, there has to be a certain amount of trust between State and individual. So if an individual says that she has an alternative way of identifying herself, the State needs to accord that basic trust and respect and allow it, as long a that alternative is reasonable. This is especially so because biometrics are probabilistic.
    • Points to Section 47, where an individual has no right to complain in case of a violation of the Act, and only the UIDAI has that power.
    • Points to Section 48, which allow the government to take over control of the entire record by citing a public emergency.
    • Says that in view of our country’s not too distant history, this worries us.
    • Points to Section 51, which allows for delegation. Section 53 – power to make rules and regulations.
    • Points to Section 57, which allows the use of Aadhaar to establish identity for any other purpose.
  • Justice Sikri says, what is the harm if you’re just giving the number and nothing else, no biometrics. Merely by giving Aadhaar, can you get all the information?
  • Shyam Divan says that firstly, you may not want to have this information spread around. The number when used with other information publicly available can be compromising.
  • Justice Chandrachud says you’re just required to give your Aadhaar number. The biometric information remains only with the CIDR.
  • Shyam Divan says this is not so. He takes the example of fingerprints being skimmed off.
  • Justice Khanwilkar says Aadhaar establishes identity, doesn’t give identity information.
  • Bench rises.
2018-04-11T11:25:56+00:00January 23rd, 2018|Aadhaar|0 Comments

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