Final hearing of Aadhaar in Supreme Court – Day 20


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 20: 21 Mar ’18

  • Aadhaar Day 20. Attorney General (AG) KK Venugopal is beginning the case for the Union.
    • He announces the batting line up …says he will be followed by Senior advocates Rakesh Dwivedi (UIDAI), Jayant Bhushan (RBI) and Gopal Sankaranarayan appearing for intervenors.
    • Even as he laments that petitioners have taken almost 19 days, promises to keep the Union arguments as brief as possible.
  • Attorney General says that there are many technical aspects in this case involving security, storage of information, steps taken to prevent leakages etc.
    • He says an enormous effort has been put in to ensure security. There have been sixty committees since 2006.
    • Says that these committees have also examined alternatives like smart card. He says that Aadhaar is not a fly-by-night scheme, but a serious effort to insulate deserving beneficiaries from the effects of corruption.
    • Many countries have adopted a unique identification system. The World Bank has looked into every aspect in a report called Identification for Development.
    • The World Bank has referred to Aadhaar as well in that report.
    • We will explain how security is protected at every step from enrolment to CIDR. The CEO of UIDAI has prepared a power point presentation and he can also explain it to the Court and answer any questions on info security that the Bench may have.
    • Reads out the qualifications of the CEO of UIDAI.
    • Says that tomorrow afternoon at 2 30 the CEO can make a technical presentation.
  • Chief Justice of India tells the AG that “first you make the legal contentions.”
    • He gives a brief list of 14 points raised..including all usual suspects – petitioners have argued on privacy, anonymity, dignity, surveillance, aggregation, presumptive criminality, unconstitutional conditions, absence of a law, security.
    • He asks the AG to respond to those.
  • Attorney General agrees it is a good summary.
    • Says that many doubts and fears that have been raised will be clarified by the presentation.
    • He says that there is also a four minute video showing the thirteen foot wall around the CIDR.
  • Justice Chandrachud says that the petitioners also began with a factual superstructure from the CEO, so the AG’s request might be a fair one.
  • Chief Justice of India is non committal and says that first you begin, then we’ll see.
  • Attorney General: the core effort of the Aadhaar Act is to protect the huge amounts of money spent to bridge the gap between rich and poor.
    • When the British left, poverty was 66% and illiteracy was 87% . Now both are down to 27% But in absolute terms it is higher. Has handed over a note which he is relying on.
    • The money being diverted was more than 1000 crore. Middleman and public servants were diverting funds. Corruption was massive.
    • Even China is less corrupt than us according to Privacy International. So something had to be done. The Act was framed to take into account every fear, and have the least possible invasion of privacy.
    • Under the architecture of the Act, the invasion of privacy is at the lowest possible level.
    • Before the Act, the Court had ordered that Aadhaar be voluntary. So there should be no question of fundamental rights violations. If it was voluntary, how could there be violation?
    • Says that there is a long line of decisions that have established under Article 21 – The Indian SC has said that the right to life is not a right to a mere animal existence, but a right to live with dignity etc., and that Aadhaar is a measure to secure them all.
  • Justice Sikri says that it’s an interesting question when two rights clash – such as right to privacy and right to life.
    • Says that in this case both sides are invoking the right to dignity – both parties are invoking Article 21.
  • Chief Justice of India says that the AG’s argument seems to be that the individual right to privacy must give way to the right to distributive justice – basically making the argument of reasonableness
  • Attorney General says that in this country, if you are poor, you become invisible.
  • Justice Sikri: that this argument must be dealt with in the context of exclusion.
  • Attorney General says that lots of NGOs have said there is exclusion, but the Court hadn’t heard from any affected person.
  • Justice Chandrachud says that it cannot be said that individual rights are subordinate to distributive justice. He gives the example of the Bengal Famine. (This is Amartya Sen’s argument that famines don’t occur in democracies because of the freer flow of information.)
  • There is some discussion between the AG and the Bench on the causes of the Bengal famine. (Some criticism of Churchill). Back to the case.
  • Attorney General says that what about the fundamental Rights of poor people to exist without hunger and lying on the pavement would prevail over the right to privacy.
  • Justice Bhushan says that the poor have an equal right to privacy. Their rights can’t be violated any more than the rights of the rich.
  • Attorney General says that this is a question of balancing rights and not a question of violation.
    • Repeats the point that there can be no question of violation of fundamental rights before 2016, because it was voluntary.
  • Justice Chandrachud says that it’s not so simple. When people agreed to obtain Aadhaar, they did not accept a surrender of their data, or commercialisation. Besides, the safeguards of the Act didn’t exist back then.
  • Attorney General says that the poor people who were the beneficiaries between 2009 and 2016 have not complained.
  • Justice Sikri says that it’s not limited to that class – that is, the class of section 7 beneficiaries.
  • Attorney General says that as far as bank accounts, income tax and phones are concerned, we will deal with them separately. He is reading from his note.
    • Repeats that the fundamental question in this case is one of balancing.
    • Says that Aadhaar is an enabler for millions of residents. It enables their right to food, livelihood and pensions. A handful of petitioners want it to be struck down on grounds of privacy.
    • Object of the Act is targeted delivery for genuine beneficiaries. It furthers the Article 21 right of the poor people of India, and advances the Directive Principles.
    • Reads out the statement of objects and reasons of the Aadhaar Act.
    • Reading out various reports on inclusiveness and the right to food.
    • Reads out the SC’s PUCL right to food case, which had made specific references to the DP Wadhwa Report, and recommending computerisation of PDS.
    • Reads out the extract from the PDS judgment that asked Nandan Nilekani to suggest ways of computerising the PDS.
    • Says that Nilekani has conceptualised the UIDAI.
    • Reads out the part of the PUCL judgment approving issuance of Aadhaar and linking to PDS.
  • Bench rises for lunch.
  • Bench assembles after lunch. AG to continue the case for the Union.
    • Says that Section 12 of the National Food Security Act envisages the use of Aadhaar for better targeting and computerisation, and for unique identification.
    • Reads out the SC’s judgment on Aadhaar/PAN (from last June), and says that in that case, the objectives of Aadhaar had been endorsed by a bench of Justices Sikri and Bhushan.
    • Reads out the part of the Aadhaar/PAN judgment that cited  Jean Dreze and Amartya Sen on the need of sustainable development (Binoy Viswam extracts).
      • (Recall that Jean Dreze has filed 2 affidavits in this matter contradicting the stand of Govt. on the effectiveness of Aadhaar and detailing the exclusion caused by Aadhaar in Jharkhand).
      • AG denied that the deaths in Jharkhand reported as due to aadhaar were actually not so. He said one of them had 30000 in her bank a/c and could not have died due to starvation!
    • Reads out the part of the Aadhaar/PAN judgment that spoke about ghosts in the system, and cited Rajeev Gandhi’s aphorism that out of 100 rupees of welfare, only 15 reach the intended beneficiary.
    • Reads out the part of the Aadhaar/PAN judgment that spoke about cracking down on black money and money laundering, and the problem of multiple PAN numbers, and the benefits of centralised systems like the UIDAI to combat this, as well as combat terrorism.
    • Reads out the part of the Aadhaar/PAN judgment that says that Aadhaar is the most robust way to achieve deduplication.
    • Reads out the part of the Aadhaar/PAN judgment that rejected the Article 14 challenge. You can read the judgment here.
    • Essentially going through the list of all 144 Section 7 notifications.
  • Justice Sikri asks how pensions fall within section 7 of the Aadhaar Act, because pension is a right.
    • Asks where is the question of leakage or fraud in that case?
    • Says exclusion is aggravating when such rights are involved. Asks about a hypothetical where a pensioner may be abroad for the moment with his son but wants his pension credited. Why is he now required to present himself for Aadhaar.
  • AG says that there are fake pension cards.
    • Says there has to be an actual case.
    • Says there are no deprived petitioners here..but these are PIL petitioners. He asserts that there are no actually excluded person complaining.
  • Justice Chandrachud and Justice Sikri don’t look convinced.
  • Justice Sikri says that this becomes relevant in the context of exclusion.
  • AG repeats that nobody who has been excluded has come to the Court.
  • Justice Chandrachud queries again about multiple problems with requiring Aadhaar for pensioners…people who have dementia etc….these are all real problems.
    • Says that some of the rough edges of the Law may need to be softened, to avoid exclusion.
  • AG says that they can deal with a specific case if someone complains, but nobody has complained.
    • There has been some more discussion on pensions.
    • Cited a World Bank Report saying they UID should be universal and everybody should have it.
  • Now reading from page 118 circular in the Union’s latest affidavit.
    • Says this is a welfare state and that Govt will not leave anyone in the lurch or deny anybody.
  • Justice Chandrachud has asked how EPS pension a “subsidies, benefits and services” should be understood in terms of section 7.
  • AG replies that it will be covered under the defintion of Benefit under the Aadhaar Act.
  • Justice DY Chandrachud asks that exclusion is undeniable. That as recently as in Dec 2017 there was a consideration in Cab Sec is indicative of it.
    • Wants the Govt to come up front about it and tell the Court what measures have been taken.
  • AG promises to lay those before Court.
    • For the moment wants to read the transcript of his recent lecture that he gave titled “Poverty as a challenge to Human Rights” (Page 42 of the written note he submitted today. See above link).
    • argued that poverty is a violation of human rights He has cited Roosevelt, Nelson Mandela and the UN.
    • Says 300 million people are poor in India and they cannot be deprived of their right under Article 21 for the privacy interests of a few petitioners or the elite. On one side you have the human rights of 300 million poor people.  On the other side you have a state of mind.
    • Says that this Court can see where the balance lies.
    • Reads page 112 of the latest affidavit Cabinet Secretariat note that seeks to make exceptions to ensure no exclusion.
    • Says that there are mechanisms under the regulations to ensure seamless delivery of benefits. Until the point an individual gets an Aadhaar, he is allowed to use alternative forms of ID. If biometric fails, then an individual shall be given the benefit on showing Aadhaar no.
    • Reads out various other handling mechanisms such as doorstep delivery and notifications from the Ministry of Food. He says that this is an ongoing process.
    • Handed over a copy of the worldbank report by the name ID4D (Identification for Development).
    • Says exclusion cannot be a ground of striking down the project.
    • Whereever there are problems Govt will take care of them, he promisingly says.
    • Says the highly researched ID4D report says this is the only way of development!
    • Says that after the World Bank Report, there cannot be a second thought about the benefits of Aadhaar.
    • Now reading from the ID4D report.
    • Reads out the Foreward of the World Bank Report which says that official identification is more than a convenience, it is a fundamental human right.
    • Reads out the part of the World Bank Report that says that a lack of identification specifically affects women and children adversely.
    • Reads out the part of the Report that talks about delivery of services to the poor and making everyone count by delivering an identity.
    • Says that the World Bank has stated that this would help development and that it should be a universal.
  • Justice Sikri asks that if your only goal is identification, what is the need for centralisation and aggregation?
    • Asks whether this is proportionate.
    • Takes the example of Singapore, where the data remains on the card
  • AG says that all this will be explained by the CEO of UIDAI in his presentation tomorrow.
    • Says that aggregation is not possible with Aadhaar.
    • Says that the CIDR does not have the purpose of the transaction.
  • Bench rises. Some discussion on the presentation to be made by the CEO.
  • Chief Justice of India says that first you give it to us in word format.
  • KV Viswanathan says that if there will be a presentation, then there must be a right to cross examination by the Petitioners.
  • Justice Chandrachud J says that there can’t be a freewheeling cross examination. Questions can be placed through the CJI.
  • All this will be decided tomorrow.
2018-04-11T10:31:08+00:00March 21st, 2018|Aadhaar|0 Comments

Leave A Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.