Final hearing of Aadhaar in Supreme Court – Day 8


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 8: 07 Feb ’18

Senior Advocate Kapil Sibal counsel for petitioners arguing.

  • Aadhaar Day 8, morning session.
  • Kapil Sibal continues arguments for some of the Petitioners.
    • Clarifies his point on 8 (3)(c) and says it is ‘completely wrongly drafted’ with respect to “alternatives”…because for authentication, according to definition, there is no scope for alternatives.
  • Justice Sikri and Justice Khanwilkar are not so sure. Insist there are alternatives available.
  • Justice Bhushan joins and says alternatives are perhaps to ‘double check’ and Kapil Sibal agrees.
  • Kapil Sibal says this goes to his argument of ‘one nation, one identity’.
  • Justice Bhushan asks what is wrong with ONOI.
  • Kapil Sibal says everything wrong.
  • Justice Bhushan says we are all Indians.
  • Kapil Sibal says Indian has got nothing to do with identity. Both agree though that this debate is more political than legal and leave it at that.
  • Justice DY Chandrachud points out that the definition of identity info is inclusive and not exhaustive. Says Act contemplates something else other than demographic and biometric info as identity info.
  • Kapil Sibal says he does not disagree but wants to know what they are. That is that.
  • Kapil Sibal moves to his second submission.
    • Says Israel is the only other country in which even a remotely similar central id system exists.
    • Says we are more than our Aadhaar numbers in reply to a Justice Sikri question that the idea of ONOI is perhaps unique.
  • Justice DY Cchandrachud says he is yet to get over 8 (3)(c). Kapil Sibal laughs.
  • Kapil Sibal reads different ways of auth. Biometric, Demographic, OTP.
    • Says most jurisdictions that have biometric id have biometrics in the smart card encrypted so that it cannot be stolen. But says he is not questioning a policy decision. Only constitutionality. Says how UK scrapped the Identity Cards Act.
    • Now moves to give his interpretation of S 57. Says S 57 gives the option to use Aadhaar card for establishing his identity and that such individual cannot be prevented from doing so by anyone.
  • Justice Bhushan and Justice DY Chandrachud are not so sure. Justice Sikri also has doubts.
  • Kapil Sibal says if S 57 is interpreted to empower private parties to insist on Aadhaar, it is seriously unconstitutional and therefore is canvassing an ‘innocuous’ interpretation as described by Justice Sikri .
  • Justice Bhushan vehemently disagrees with Kapil Sibal. Atleast for the moment.
  • Justice Chandrachud and Justice Sikri point out that the Govt seems to construe it as empowering other bodies to insist on Aadhaar.
  • Kapil Sibal says he just wants to assist the Bench to come to a reasonable interpretation so that it is consistent with the constitutional scheme of liberty.
  • Justice Chandrachud further points out to Kapil Sibal the proviso to S 57 indicates that use means use by third parties.
  • Kapil Sibal disagrees that proviso has that effect.
  • Justice Chandrachud is still not sure of Kapil Sibal’s interpretation.
  • Kapil Sibal moves to the next submission. Says that possibility of misuse by private parties is a serious infringment of constitutional rights. No assurance against such misuse. Clarifies that he is not talking about abuse by state, which is not a ground of challenge but a different case here. The misuse is by pvt players.
    • Repeats his proposition that losing personal data is losing one’s property.
    • Hands over a note. Lists some of the applications that use personal sensitive data. Specifically discusses “Mood Panda” and FitBit.
    • Reads his note on the difference between data and metadata. Data is content. Metadata is info about the communication, minus the actual content of the message.
    • Reads on says enough of metadata can reveal a lot about the content or the data and that it is a mistaken belief that metadata alone reveals too little to be compromising of secrecy of data or privacy.
    • Says aadhaar now is linked to every journey when irctc links it. Same thing with airlines. Everyone will be tracked throughout their lives. This metadata is sufficient.
  • Justice Khanwilkar says Respondents deny it.
  • Kapil Sibal says Aadhaar is linked and all metadata is available with state.
  • Justice DY Chandrachud in a discussion with Justice Sikri. Justice Khanwilkar in a separate discussion with Chief Justice of India.
  • Kapil Sibal says that he is not talking about the State abusing Aadhaar, but how Aadhaar makes everyone vulnerable. He says that vulnerability is where the violation of rights comes in.
    • Says that why should anyone know where I am flying to.
  • Justice Sikri says that most of us our frequent flyers and our flight information is anyway stored by the airlines.
  • Kapil Sibal says that is only with the airline. He says that it was because of the perils of storage of information that the UK destroyed its national biometric identity program.
    • Says that he will discuss the technical side of Aadhaar. The first issue is that of centralisation. UIDAI claims it is secure because it is federated.
    • Cites an RBI report that identified the CIDR as “a single point of attack” and a “single point of failure.”(RBI staff paper)
  • Justice Chandrachud agrees that theoretically, every centralised database can be hacked. He says that this is not necessarily a statement of vulnerability, but the acknowledgement that you need to take care.
  • Kapil Sibal agrees that there need to be safeguards that protect the system.
    • Says that unlike smart cards, most biometric readers in India can be defeated by a child using fevicol and wax.
    • Says that with smart cards, there is no centralised database that can be compromised. Any leakage of biometric data is permanent.
    • If there is no knowledge of when the biometric data is stolen, it will be difficult to trust future transactions.
    • Talks about the impact of leakage of biometric data on criminal trials and investigation.
    • Talks about man-in-the-middle attacks.
  • Justice Sikri says that these days phones have fingerprints and iris authentication.
  • Kapil Sibal says that is only stored on the phone.
  • Justice Sikri smiles and says “we understand that distinction.”
  • Kapil Sibal talks about the recent Airtel scam involving Airtel payment accounts.
    • Says that UIDAI itself has acknowledged these issues by releasing L0 and L1 security standards, but many machines still don’t meet that standard.
    • Says that in fact, the State Resident Data Hubs have no security of any sort.
    • Says that this is the nature of the digital world.
    • Talks about the perils of face recognition.
    • Talks about how China has used face recognition to profile Uighurs.
    • Says that there is an important question of who owns the biometric data, and that there is nothing in the law that defines this.
    • Says that the margin of error increases with the increase in the size of the database. The larger the database, the more the rejections. At 1 billion, it’s 1 in 146 rejections.
    • Says that “so basically, the UIDAI will decide who are the ghosts and who aren’t.”
    • Says that UIDAI claims that replay attacks will be dealt with like you deal with forged credit cards. He asks “but where will you find the evidence from.”
    • Says that Aadhaar impacts federalism.
    • Says that exclusions caused due to Aadhaar violates the right to equal treatment.
    • It disproportionately impacts people who are aged, people engaged in manual labour, disabled people, and so on. This is a specific issue with biometrics, as opposed to smart cards.
    • Says what might be appropriate for fighting crime and terror is inappropriate for the daily interactions between citizen and State.
    • Says that the Act contemplates breaches.
  • Bench rises.
2018-04-11T11:21:22+00:00 February 7th, 2018|Aadhaar|0 Comments

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