Final hearing of Aadhaar in Supreme Court – Day 10


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 10: 13 Feb ’18

Senior Advocate Kapil Sibal followed by Senior Advocate Gopal Subramaniam counsel for petitioners arguing.

  • Hearing resumes. Kapil Sibal will conclude today.
  • Kapil Sibal reads out the definition and purpose of biometric database.
    • These definitions are from the national ID law of Israel. Points out the voluntary nature of the ID cards handed to the residents.
    • Focuses on the consent in Israel’s ID law. Also points out that the biometrics are to be used only for the purpose they were collected. Further, access to the database will also be restricted to a particular purpose. No provision for metadata in their law.
    • Now refers to Aadhaar Act. Says it is mandatory and for lifetime. Consent is illusory.
    • Says can only use the database for purpose authorised by law. Points out how the purpose of ‘national security’ is misused in India. Some NGOs are targeted for national security.
    • Points out regulation that says Aadhaar can be deactivated for national security purposes.
    • Comes to his first proposition- Information is power.
      • Refers to the Puttaswamy judgment which observed that information is knowledge. Reads out relevant paragraph on the power of information and knowledge.
      • Reads excerpts from Harvard Business Review which talks about WhatsApp acquisition by Facebook for a very high valuation. Points out why are all these services so highly valued-because of the information they provide.
      • Now reads the third paragraph of the same chapter. Refers to the power of networks. Gives examples of Uber and other services.
      • Comes back to Puttaswamy judgment. Reads the now famous quote that Airbnb, Uber, etc own nothing.
      • Says that these services have information which is scattered and not connected. Information being aggregated poses threat. Says it was also noted in the Puttaswamy judgment. In silos, this information is inconsequential. Aggregated, it provides a picture of personality.
      • Reads paragraph 111 of Puttaswamy judgment. Says that we can’t argue that State cannot insist for national ID. But we can ensure that my ID is not in public, not in a centralised database and that when I am transacting with a person, the ID can be established.
      • Says that on one hand we have public interest, on the other we have personal information in public domain. Gives an example that when I am travelling, it has nothing to do with public interest.
      • Gives the example of the woman who had to deliver a baby outside the hospital for want of Aadhaar. Says hospital/health information is not public interest.
      • Says that State cannot choose how I prove my citizenship, only I can. And nobody can deny that.
      • Now reads para 311 of the privacy judgment.
    • Now moves on to his next argument. Points out the voluntary nature provided in section 3 of Aadhaar Act but says that it is actually mandatory.
      • Reads out section 32. Says log of such information is created and stored every time a transaction is authenticated. However, the purpose of the authentication will not be known.
      • Reads out regulation 26. Points out that metadata is also collected and stored.
      • Reads out Section 57. Says that even in the absence of this section, some other Act could have provided for the use of Aadhaar for other purposes. However, this section brings out the true intent of the Act to establish it as an exclusive proof of identification for purposes other than the ones stated in the object.
      • Says that consent is for authentication. But the law requires to get the entitlement only through Aadhaar. Then, what’s the purpose of obtaining consent?
    • Now moves to his third submission on concentration of information in a single entity.
      • Says such a concentration gives enormous power to the entity. Reads out parts of Puttaswamy judgment on this.
      • Points out that the Act also contains provision for Audits. Says that the respondents should provide the reports of the audits that have been done.
    • Moves on to his next submission on proportionality.
      • Elaborates on when can a court look into the proportionality of a statute.
      • Points out that for an act to be proportional, it has to be seen that:
      • 1. What are your objectives and
      • 2. If your policy is the least restrictive way to achieve those objectives.
      • Says that in the current case, there’s no nexus with the entitlement. It is violative of this doctrine.
  • Justice Sikri refers to ‘culture of justification’ in South Africa. A brief discussion on that.
  • Kapil Sibal says that the very concept of Aadhaar is inconsistent with the doctrine of proportionality. Points out various provisions under Aadhaar Act which confer wide powers on the authority.
    • Points out that the State couldn’t stop the pilferage of food grains, it now has to be given personal data. How can it be trusted with the security of that data?
    • Reads on from his submissions that the purpose of Aadhaar Act was to provide for subsidies, benefits expenditure of whose was incurred from Consolidated Fund of India. Asks whether the whole expenditure has to be incurred from CFI or even the part? How is it to be interpreted?
    • Says that is it my status from which the entitlements are to flow. Further says that are several entitlements which are available to non-residents. The state cannot deny benefits to anyone only for the want of a certain proof of identity.
    • Says that most of the entitlements flow from part III of the Constitution. Says that denial of those entitlement for want of a particular proof of identification is denial of those fundamental rights.
    • Says that this procedure doesn’t meet the test of either Article 14 or of Article 21.
    • Now moves on to the next submission.

Reads para 150 of the Puttaswamy judgment in context of making people part with their biometrics for availing their entitlements.

    • Says that my right to livelihood is protected by the Constitution. Imposing a condition to exercise that right amounts to violating that fundamental right.
    • Reads on a judgment delivered by Justice Sutherland on imposing a restriction to enjoy constitutional rights.
  • Bench rises for lunch.
  • Afternoon Session.
  • Kapil Sibal is discussing the national register of citizens.
    • He says that there’s no difficulty in connecting identity to status. However, my primary status is that of a citizen, not as an Aadhaar Card holder.
    • The Aadhaar architecture is defective. But even if it was perfect, Aadhaar could not be made compulsory or mandatory.
    • Discusses the doctrine of unconstitutional conditions. This doctrine holds that the State cannot make a benefit or privilege conditional upon an individual giving up their rights. The doctrine of unconstitutional conditions was accepted in Indian law in 1974.
    • Says that when you make essential benefits conditional upon giving up rights, you place individuals between “a rock and a whirlpool.”
    • Reads out the judgment in In Re Kerala Education Bill, which also accepted this doctrine.
    • The present members of society cannot surrender rights on behalf of future members of society, such as our children and grandchildren.
    • Says that a condition that precludes you from enjoying a benefit on the basis of an unreasonable classification is void.
  • Justice Chandrachud says that if the government was to give you choice of two identities, can you refuse to give either.
    • Says that if your entitlement depends on who you are, then can’t the government require proof on that count? Is it not a reasonable condition?
  • Kapil Sibal says that proof still has to be linked to what entitles you to that benefit in the first place, which is your status.
  • Justice Chandrachud says that even if entitlement is beyond dispute, there has to be minimal way of proving who you are.
  • Kapil Sibal says, but I can have different ways of proving that fact. There are various ways of establishing identity.
    • Aadhaar doesn’t establish my status. And I can prove my identity in other satisfactory ways.
  • Justice Chandrachud says that a condition is unconstitutional if it requires you to relinquish a constitutional right. He says that if the latter part is established, then why do you need anything further?
  • Chief Justice of India says that Kapil Sibals’s submission is that you can’t be asked to barter or surrender one fundamental right in order to have access to another.
  • Kapil Sibal agrees.
  • Justice Chandrachud asks Kapil Sibal if his argument is that the constitutional violation lies in restricting the choice of identity to one.
  • Kapil Sibal says yes.
  • Justice Chandrachud says that a premise of the argument seems to be that everyone has at least one form of identity.
    • Says that if a government program is an enabler for people who have no identity, would that save the constitutionality?
  • Kapil Sibal says that even if true, it would only apply to those cases.
  • Justice Chandrachud says that in that case, the government should be able to prescribe and make compulsory one identity for those who have none.
  • Kapil Sibal says no, the government can prescribe a method by which such persons can get an identity.
    • Points to the Aadhaar Act which requires pre-existing identities in order to get an Aadhaar, apart from the introducer provision.
    • Says, the point of Aadhaar is not to grant identity to those who don’t have it, but to authenticate identity.
    • He says that a condition imposed on the basis of status is reasonable, but this is not one. He accepts that there can be a condition to prove my status, but on that, I have the right to prove it in a reasonable way.
    • Quotes Julius Caesar. “Aadhaar is a colossus, and we are underlings.”
  • Justice Chandrachud says: “your basic point is that a citizen must have a choice in deciding how to establish her identity.”
  • Kapil Sibal says “yes, through a reasonable manner prescribed by law.”
    • Reads out a notification that makes Aadhaar compulsory for bonded labour rehabilitation schemes. He says “imagine the consequences.”
  • Some exchange between Kapil Sibal and the Attorney General on this.
  • Kapil Sibal reads out other notifications that make Aadhaar mandatory for child labour welfare schemes.
    • Says that many of these schemes are meant for the most marginalised, and it is they who will be excluded. “If this is not a denial of fundamental rights, then what is?”
    • KS reads out the judgment in Minerva Mills v Union of India (link: )
    • Minerva Mills emphasised the idea of “purity of means”, and said that you cannot achieve State goals by abrogating fundamental rights.
    • Says that Aadhaar does not, as a matter of fact, stop pilferage or leakage. He reads out the judgment of the SC in PUCL v Union of India, which had cited the Wadhwa Committee Report to establish the multiple issues with the PDS system.
  • Justice Sikri says that even if one reason for fraud is being taken care of through Aadhaar, then Aadhaar’s failure to take care of other kinds of fraud will not necessarily make it unconstitutional.
  • Kapil Sibal says it won’t, but it will raise questions about proportionality. Our argument is that the scheme is disproportionate.
    • Says that he is placing on record a compilation that will repudiate all the factual claims made by the State.
  • Justice Sikri says that all the other proofs of identity have been misused, like multiple passports. He says that maybe that’s a reason for Aadhaar, to prevent multiple IDs.
  • Kapil Sibal says that people have multiple Aadhaars, and there’s no way that the State can show that that cannot happen.
    • Says that the more important point is that if I have multiple identities, then I have to be dealt with under law. Because some people are breaking the law, the State can’t require everyone to get an Aadhaar.
  • Justice Sikri says that this is again a question of proportionality.
  • Kapil Sibal says yes.
    • Sums up. He says that this is the most important case since Independence.
    • He says that this case is more important than ADM Jabalpur. ADM Jabalpur was a limited regime. Aadhaar is unlimited.
    • This judgment will decide the course that this country takes. Will we live in a country where there is choice – or do we live in a country where the State is the arbiter of choice.
    • Asks the Bench to consider the gravity of this case when they decide.
    • KS closes.
  • Gopal Subramaniam is the next counsel for the Petitioners.
    • Commences with the Supreme Court’s privacy judgment. He says: at the core of the judgment was the idea of dignity.
    • The fundamental submission is that notwithstanding the advances of technology, the Constitution cannot be obfuscated.
    • Says that there are existing forms of giving benefits that are consistent with the Constitution. He says that a crucial factor of dignity is that the most marginalised are not exposed as the most marginalised.
  • Justice Chandrachud says that social mobilisation is based on the assertion of status.
  • Gopal Subramaniam says he agrees completely, and the question is whether Aadhaar interferes with status.
    • Says that the aim of the statute is not simply exclusion, but that it also treats data as property, and anticipates money-making on that data.
    • Says that bringing in the whole population into an aggregated database is a very serious issue.
    • There is a state of exception where fundamental rights can be suspended – but short of that fundamental rights cannot be suspended or bypassed.
    • The intrusion by the State has to be as minimalistic as possible. That is the soul of the Constitution.
    • Says that the very concept of “identification” carried a pejorative sense.
    • Says that he will discuss the question of pre-existing forms of identity, before Aadhaar, and they were made. He says that Part IX of the Constitution is all about decentralisation.
    • Says that Aadhaar “disintermediates” the State, that is, it erases accountability.
    • Says that this is crucial for Article 14 of the Constitution. When you claim a violation of constitutional rights, it must be decided by a person, and not by a computer or an algorithm.
    • Says that the soul of Aadhaar is “continuous authentication.” He says that this privileges the digital person over the real person.
  • Chief Justice of India says that GS’s argument is that Aadhaar makes a person an un-person.
  • Gopal Subramaniam agrees
  • Bench rises.
2018-04-11T11:15:18+00:00 February 13th, 2018|Aadhaar|0 Comments

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