Final hearing of Aadhaar in Supreme Court – Day 7

• Jan: Day 1 (17/1/18)| Day 2 (18/01/18) | Day 3 (23/01/18) | Day 4 (24/1/18) | Day 5 (30/1/18)
• Feb: Day 6 (1/2/18)

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 7: 06 Feb ’18

Shyam Divan, Senior Advocate followed by Senior Advocate Kapil Sibal counsel for petitioners arguing.

• Shyam Divan continues reading out the affidavits of starvation deaths in Jharkhand because of Aadhaar linking failures.
• Justice Sikri asks Shyam Divan to frame the factual points in constitutional terms.
• Justice Chandrachud points to the next affidavit which is about exclusions caused to people with leprosy.
• Shyam Divan says that the issues here pertain to exclusion, death, and dignity. The reports are about extreme situations.
  • Says that the basis point is that in a democracy, there has to be an element of choice. There can’t be just one method of identification imposed.
• Justice Chandrachud says that one thing the Court needs to look at is the level of internet penetration in the country.
• Shyam Divan says that the PoS machine has a memory, so if the internet fails, the machine is often taken to another place which does.
  • Says that all Aadhaar can do is stop a very limited kind of misuse (identity fraud), and there are other ways to weed out leakages.
• Justice Chandrachud says that the affidavit seems to show that even after Aadhaar, the citizen remains dependant on the PDS dealer.
  • Says that while that argument may not furnish a constitutional ground, but the argument that Aadhaar itself is causing exclusion may furnish a ground under Article 14.
• Shyam Divan says that persons who cannot authenticate are treated as “ghosts”, and as mere statistics.
  • He says this cannot meet the tests under Articles 14, 19, and 21. This is especially so because the system is coercive.
  • Says that his next point is that Aadhaar doesn’t allow an opt-out. This is crucial from an informational self-determination point of view. He says that there must be a right to opt-out.
  • Reads out affidavits from people who have asked to be able to opt-out, on the ground that there was no genuine informed consent at the time of enrolment.
  • Reads out a collective affidavit from Meghalaya from people who want to opt-out of Aadhaar.
• Justice Chandrachud asks the position in the North-East.
• Shyam Divan says that there are places where the roll-out is low, and they have been exempted.
  • Reads out the affidavit of Rakesh Mohan Goel, a computer industry expert who went and audited enrolment centres. He found that those people were retaining biometrics and storing them, and the UIDAI had no way of knowing.
  • Rakesh Girl’s affidavit says that the biometrics of Indians are available to private entities, can be and are being stored in logs. The affidavit says that because of the architecture of Aadhaar, UIDAI has very little control over this. Rakesh Goel has annexed a paper to the affidavit, based on 25 audits, that talks about six ways of hacking. Rakesh Goel’s affidavit says that there is no way of knowing, after an audit, whether the storage is continuing or has stopped.
  • Says that when you part with something as precious as biometrics, there has to be a fiduciary relationship between you and the person taking it.
  • Says: “how can you trust a system like this?”
• Justice Chandrachud asks how the authentication machines are purchased.
• Shyam Divan says that UIDAI has technical specifications, but the purchase is private.
• Justice Chandrachud asks whether the enrolment agencies are chosen by UIDAI.
  • Takes the example of credit card fraud (swiping), and says “is this possible with Aadhaar?”
• Shyam Divan says that it is possible to hack into these systems, which are not as secure than the CIDR.
  • Reads out Rakesh Goel’s academic article that explains the six ways of hacking. (This is part of his argument on bodily integrity and the right to control one’s information about oneself.)
  • Says that the point is that biometric data is easily compromisable.
  • He says that the basic point is that this is a reason why people do not want to be on Aadhaar, and why they should not be mandated to get into the system.
  • Says that while some of these leaks can be plugged, but the basic design is faulty.
  • Takes the example of what happened in Surat two days ago, and says this illustrates Dr Goel’s warning. In Surat, the biometric data of ration card holders was stored and then used to siphon off.
  • Takes the Court through the mechanism of producing artificial fingerprints. The operator’s fingerprints are cloned. When UIDAI found this out, they added iris authentication. However, the hackers then found a way to bypass that as well.
  • Says that the first point is that cloning of fingerprints is easy and it’s possible, and it’s been done.
  • What is the integrity of the system, and why should anyone trust this? This is a question of my right to protect my body and my identity.
  • If the system is so insecure, why am I being mandated to authenticate through fingerprints for every transaction?
  • Points to an RTI reply from 2017 that says that 6 crore 23 lakh biometric enrolments are rejected because of duplicates. This is larger than the populations of Gujarat.
  • Says that the more the database expands, given that this is a probabilistic system, the more times you will have a match.
  • Says that this is indicative of exclusion, and that the system is saturated, leading to unjustified rejections.
  • Reads out Dr Reetika Khera’s affidavit, who is an economist at IIT Delhi, and works on the NREGA. The affidavit speaks about biometric authentication failure at a tribal school, where those whose fingerprints were not recognised by Aadhaar, were not marked present.
  • Says: “these are not ghosts in the system. They are flesh and blood girls attending the school, and Aadhaar is not recognising them.”
  • Secondly, you’re creating records for an entire lifetime, starting from school. Is this not a surveillance society?
  • Thirdly, there is no statutory sanction.
• Justice Sikri says that in fact later, the teachers may be hauled up for inflating numbers.
• Shyam Divan says that he will now address the question of whether an individual’s body belongs to her or to the State.
  • The question is, in a digital world, how do I exercise control over my body?
  • Reads out an extract from an article by Peter Benson in the Oxford Handbook of Jurisprudence, which says that individuals have an innate right over their bodies. The right to the body is placed at a higher pedestal than the right to property.
  • In a liberal democratic culture, the basic value is the prohibition of slavery, which means that an individual’s body cannot be used for purposes that she does not endorse.
  • “Every individual is a self-authenticating source of valid claims.”
  • Says that this is at the core. If a person exists in flesh and blood, where is the question of denying her anything? This is at the core of Article 21 and the relationship between the individual and the State.
  • In a liberal democratic culture, can the State say that “I will choose to recognise you only in this manner, otherwise you cease to exist”?
  • There is no concept of eminent domain as far as the body is concerned. The body cannot be used as a marker for every service.
  • The State has a legitimate interest in identifying a person, and so there could be a set of limited, narrowly tailored circumstances where you are required to give up fingerprints, such as for a passport or a driving license or a criminal investigation.
  • Personhood under the Indian Constitution flows from being alive, and not from registering oneself in a central database.
  • Ends with Mahatma Gandhi on the Transvaal Ordinance. “This degrades free individuals.”
  • SD begins his final summation of the case.
  • What’s at stake here?
    • First, personal autonomy is at stake. Are we going to cede complete control of the body to the State? In a digital world, personal autonomy extends to protecting biometrics.
    • The second point is constitutional trust. We have created the State, and now the State trusts us as unworthy unless we cede our biometerics. The Aadhaar program treats the entire nation as presumptively criminal.
    • The third point is the rule of law. Look at how this project has been rolled out.
    • The fourth point is surveillance and privacy.
    • Lastly, if this program is allowed to roll on unimpeded, think of the domination The State will have over the individual.
• Shyam Divan closes the case.
• Bench rises for lunch. Kapil Sibal will argue after lunch. Quick note to say that Shyam Divan and his office has been with the Aadhaar challenge since its origins in 2012, and has appeared in every hearing for the last six years.
• Kapil Sibal begins by complimenting Shyam Divan on the passion and hardwork he has put in in this matter.
• Justice Sikri agrees. Chief Justice of India smiles in agreement.
• Kapil Sibal says never before has this Court had to contend with a matter with as far reaching consequences as this one.
  • Every child and grandchild Aadhaar number is sought to be taken.
  • 1. Power of information is immense.
  • 2. No more powerful tool than information. KS says he agrees with Narendra Modi’s statement in Davos that he who controls data of the world controls the world.
  • Says likewise in India.
  • Aadhaar is nothing but Right to information Act of the state.
  • Aadhaar makes the individual more accountable!
  • It is the power of information that makes discoveries patentable, he says.
  • No safe technology in the world. If anyone tells you that, he is lying. Plain and simple.
  • No technology is free from misuse.
• Justice Sikri asks if he was saying we should do away with every technology.
• Kapil Sibal: this is different because it transfers the power of information.
  • Which is why this is the most important case since independence. Nothing would affect us and all future generations than this one.
  • Bench has to reflect on why most powerful corporations now such as Google or Uber own few assets other than information.
  • Heart of Article 21 is choice. The State seeks to deprive individuals of the choice of manner of identification.
  • Article 21 says that any measure of state must both be procedurally and substantively reasonable.
  • My thumb impression is my property. Can I be asked to part with my fingerprints without any reciprocal promise of safeguards?
  • The process of enrolment and authentication is procedurally unreasonable.
  • Identity has nothing to do with one’s entitlement or status. Identity is only a mode of proof.
  • This Bench is bound by 9-judge bench decision of St.Xaviers judgment where no condition can be made that abridges FRs.
  • Biometrics are a western concept. Countries are either mono or at best biracial and their biometrics are clear etc.
  • Here most people’s biometrics are frail.
  • Our constitution much grander than US constitution where state action has to be tested against 21, 14, 19…and also 20 (3).
  • With Aadhaar all info is already extracted out of individuals…20 (3) is effectively wiped out.
    • 1. Digital world more susceptible to manipulation than physical.
    • 2. No personal data should be put to risk in the absence of technologically assured to be safe environment.
    • 3. Such a level of assurance is impossible to obtain in the digital space. Biometric and demographic info once part of the digital world is irretrievable. A genie out of the bottle can never be put back.
    • 5. The digital world is a vehicle to benefit the information economy.
    • 6. The move from information economy to an architecture of information polity has far reaching effects on rights that are constitutionally protected.
  • Information is the market now. Aadhaar wants it handed on a platter. All the preferences and behavioural patterns of 1.3Bn Indians.
• Justice DY Chandrachud: In the Act, Section 3 is an entitlement. By its very nature it empowers the individual, no? Where did the notion of mandatory Aadhaar originate?
• Kapil Sibal reads Section 3 and Section 7 and says Section 7 makes it mandatory. (Also comments that no one who has enrolled has been counselled in the manner as specified under S3. Be that as it may).
• Justice DY Chandrachud: This confines itself to subsidy, benefit or service drawn from consolidated fund of India.
• Kapil Sibal: That is my argument. No power to make it condition precedent..S 57 is wholly unconstitutional.
  • Secion 7 has a separate challenge. But says DYC J is right to say S 7 deals only with consolidated fund of India.
  • Problem arises because parallel legislations like income tax act, PMLA rules etc are amended to require Aadhaar.
  • Reads the definitions of subsidy, benefit and service under the Act. Section 8 talks about consent. But where is consent when every interaction in the civil society needs Aadhaar.
  • Says consent provision is fully illusory.
  • Where is the concept of a consent for kids?
  • We are creating a monolith. A system of no choice. An RTI Act for the state.
  • Central Identities Data Repository (CIDR) is controlled by a foreign entity. UIDAI have no control over it or its source code (this is technically an incorrect statement.). Some commotion among the Respondents section.
• Justice DY Chandrachud asks who is a requesting entity and says defintion 2 (u) is broad and includes any person who submits authentication requests. Agreement in the bar.
• Kapil Sibal reads the list of all requesting entities from Schedule under Auth Regulations.
•  Justice DY Chandrachud asks 8 (3)(c) does not make it mandatory for a requesting entity to insist on Aadhaar.
• Kapil Sibal says alternatives there are among biometric and demographic.
• Justice DY Chandrachud and Justice Sikri disagree.
• Kapil Sibal invites them to interpret 8 such that it is not mandatory. But says Aadhaar act is about Aadhaar and not alternative modes of identification. There is a little bit of confusion on 8 (3)(c)…Not relevant. There is a discussion on Section 57 and PMLA Rules.
• Justice Sikri observes that the presumption appears to be that every citizen is a money launderer.
• Kapil Sibal smiles in agreement. Says all these tall claims are good politics.
  • Reading out the type of data that is stored in the CIDR. He pauses at “metadata”.
  • Explains the concept of metadata.
  • Says that ultimately, it is metadata that reveals information about a person.
• Justice Chandrachud points out that data is to be archived for five years.
  (This discussion is around the Aadhaar authentication regulations).
• Kapil Sibal says that this retention of data makes Article 20(3) of the Constitution (right against self-incrimination) completely illusory.
  • Discusses the American debate around the government compelling Google or WhatsApp to yield information.
  • Says that if the State wants Google to give information, it will have to get a court order. Aadhaar bypasses that safeguard.
  • Says that you have the right to opt-out of Google, FB, Twitter. There is no such right with respect to Aadhaar.
• Justice Chandrachud says that distinction may not be persuasive, because in today’s world, you have only notional consent even with respect to private players.
• Kapil Sibal says that there is an important distinction between the State and Google. There are open source alternatives to Google. And even within Google, I have choices and control.
  • Says that there is also a further qualitative distinction. Google uses your data and that often increases your choice. Aadhaar restricts it.
  • Says, “how can this ever be a money bill.”
• Justice Chandrachud says that that link comes from the Consolidated Fund of India.
• P Chidambaram stands up and says that he will argue this point.
• Kapil Sibal says that Chidambaram knows more about money than he does.
  • [Some banter] Reads out regulation 28 (deactivation of Aadhaar).
  • Says, consider what will happen in the time that your Aadhaar is deactivated, and you’re trying to rectify it. He says that this is unimplementable in a polity as large as ours.
  • says, think of how this will play out in rural India. He points to the regulation that allows deactivation for “any other reason deemed appropriate.
  • “What kind of power is this? This is the power to cause civil and digital death.”
• Justice Chandrachud says that you can’t judge the validity of an act by the potential for abuse.
• Kapil Sibal says that this is about how much power you are giving up to the State.
  • Says that in the information age, it’s not merely about “possibility” any more. It exists.
  • Reads out an article in the newspaper today that talks about digital payments being pushed to 1 trillion dollars in five years.
  • Repeats that the problem is the “unbridled nature of power.”
• Justice Chandrachud repeats the point that the constitutionality of a law has to be judged on the generality of cases and not on exceptional cases.
  • Says “how does the Court decide what level of risk is proper or not? Should the Court get into this or should it be left to the legislature?”
• Kapil Sibal says that he is not saying that the State will misuse it. But the information is in the public domain.
• Justice Sikri asks what information the bank will have when you link your Aadhaar.
• Kapil Sibal talks about how Aadhaar has been used for banking fraud.
  • Says that different principles need to be evolved in dealing with digital issues. The principles used to adjudicate other statutes don’t map with accuracy.
• Bench rises.