in Aadhaar

Final hearing of Aadhaar in Supreme Court – Day 13


Day 13: 22 Feb ’18

Senior Advocate Gopal Subramaniam followed by Senior Advocate Arvind Datar counsel for petitioners arguing.

  • Bench reassembles.
  • Gopal Subramaniam resumes his arguments.
    • Refers to article 243G(b) of Constitution. Says that some level of implementation is clear in the said provision.
    • Says that Puttaswamy judgment talks about identifying eligible recipients. But the present act does not identify eligible recipients, instead it provides proof of identity.
    • Says that sans criminality or any offence being committed, people cannot be asked to give their biometrics. Says that biometric authentication was considered only in the case of commission of crime.
    • Points out Selvi case which said that taking of fingerprints is invasion.
    • Now moves on to Indian case laws. Refers to the launching of electoral rolls for purification-linking it with Aadhaar. Says that a 3 Judge Bench of the same court had issued a note, post which the programme was suspended.
    • Submits that Aadhaar bank linking is for money laundering but NPCI is making the database available to private parties. Says that anyone can get a profile of an individual from the State Resident Data Hubs. Says there’s no limitation on what info can be stored in SRDH.
  • Rakesh Dwivedi says that SDRH were established under MoU under the UPA regime. Claims that after the act was enacted, the data was destroyed.
  • Gopal Subramaniam reads out the intervention application in which the applicants say that their business models required Aadhaar to function.
  • Justice DY Chandrachud  asks for credible documents to show to what extent the private parties had access to the database. Asks can the private parties gain access to the biometric information. As Section 57 of the Act does not provide provision for the same.
  • Gopal Subramaniam says that the authentication agents are not govt. agents. They’re private players. Says that Aadhaar bridge is an invitation to business which would be done through this agent.
  • Justice DY Chandrachud  points out that Section 57 only allows authentication by the private parties. Then how do they get access to the data.
  • Gopal Subramaniam says that due to seeding of Aadhaar with multiple databases, the entity can gain access to the profile of the individuals.
    • Now refers to the definitions in the Act- ‘Aadhaar number holder’, ‘biometric information’, ‘core biometric information’.
  • Justice DY Chandrachud  asks what is biological attribute. Could DNA be biological attribute?
  • Gopal Subramaniam replies in affirmative.
  • Justice DY Chandrachud  says that the definition is open-ended then.
  • Gopal Subramaniam reads more definitions. Reads to Section 3 on enrollment. Reads on section 4.
    • Refers to the enrollment regulations. Says that the burden of updating the information in CIDR is on the individuals.
  • Justice DY Chandrachud  says that the govt. can’t be expected to keep a track of all the changes.
  • Gopal Subramaniam replies that demographic is another thing, but how will an individual get to know that she’s due for biometric updation?
  • Justice Khanwilkar says that in case of an authentication failure, the person can go for updation.
  • Gopal Subramaniam points out that an authentication failure is viewed as the person being a ghost, fake nowadays.
    • Now moves to Section 31 on alteration of demographic or biometric information. Points out that incase the biometric info is lost or changes subsequently, the individual will have to request UIDAI to make alterations in his records.
  • Bench rises for lunch.
  • Hearing resumes post lunch.
  • Gopal Subramaniam goes through enrollment regulations 16, 17, 18, 19.
    • Says that the words of regulation 28, which deals with the security of the info, are in the nature of assurance and not emphatic.
    • Says that reg 27 to 29 are very poor safeguards. Says that the moment there is an authentication failure, there’s an assumption that the biometrics were captured validly at the time of enrollment and now the person is trying to duplicate.
    • Points out the cases in which Aadhaar shall be deactivated. Says that there is no procedural or substantive reasonableness being followed by the authority.
    • Says that the architecture of this Act is completely deleterious to human dignity.
    • Reads section 33 on disclosure of information in certain cases pursuant to court order. Points out that the individual will not be given opportunity of hearing. Instead the authority will be given the opportunity.
    • Goes back to Section 7, impresses upon the wordings used- require, undergo, furnish proof- says they impose a condition.
    • Further says that whether mobile phones, banks, income tax get covered under this section. Says that it has gained creeping coverage.
    • Says that section 7 doesn’t actually prescribe that there must be real recipient of the benefits.
    • Says Section 4(3) proves the Act is for universal coverage and thus, is ultra vires of Constitution.
    • Summarises his points. Says that in case authentication fails, the entitlements may be annulled, resulting in permanent disablement.
    • Says that due to technology, the possibilities of profiling are very strong.
    • Hands over the compendium and reads on big data and metadata.
    • Remarks that liberty cannot be measured in coffee-spoons.
    • Reads about the nature of big data’s analytics tools and it’s unpredictability.
    • Says that the algorithms are unpredictable in nature. Says UIDAI is not the algorithm writer. What guarantees do we have then?
    • With big data, we can get the details of the individuals, especially if combined with other data sets. It can even give geographical data of the individuals.
    • Says that in the absence of a data protection law, the injury or vulnerability is heightened. No assurance can lessen that.
    • Says that the data retention should also follow reasonable and substantive reasonableness. It cannot be for all the people. That’s very broad.
    • Says that there’s an uncertainty associated with biometric systems. They’re probabilistic in nature. There is a risk of error.
    • Says that biometrics are untrusted systems.
    • Refers to Wilson affidavit.
    • Talks about babies being enrolled into Aadhaar. Says we shouldn’t ever go down that way.
    • Hands over a module on exclusions due to Aadhaar.
    • Says that in Jharkhand, exclusion is as high as 49%.
    • Reads a letter of a CSC, an agency during the enrollments, with which MoU was ended due to corruption and non-observace of procedure.
    • Further refers to several affidavits from excluded people.
    • Refers to the L1 contracts. Says it is very clear that the foreign entity has total control over the algorithm.
    • 2. Data is with L1 even though UIDAI may have ownership.
    • 3. It can subject it to such use, analysis as may be required.
    • Refers to the interim orders of the SC. Says everyone including the govt. is bound by the orders of the court. But, after 2016 Act, the govt. did not obey those orders.
    • There has been a continuous violation. Petititioners have brought to the notice of the Court continuously. Now in 2018 we have starvation deaths.
    • Court must grant exemplary damages and compensation to those who lost their lives or otherwise excluded.
    • Fundamental freedoms can only be protected by the Courts. Lots of grounds have been covered by the judgments.
    • Requests the court to extend the deadlines as had been mentioned in its order dated 15th December, 2017 since the matter is still pending.
    • Gopal Subramaniam concludes his arguments.
  • Senior Advocate Arvind Datar to commence his arguments in W.P. 1017/2017.
    • Says he has 7 basic points to cover.
  • Chief Justice of India recommends that he submit a note on points to be covered and then elaborate on those 6th March onwards.
  • Court rises for the day.

Write a Comment

Comment