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Final hearing of Aadhaar in Supreme Court – Day 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 18: 15 Mar ’18

Senior Advocate K V Vishwanathan followed by Senior Advocate Anand Grover and Senior Adovcate Meenakshi Arora counsel for petitioners arguing.

  • K V Viswanathan will conclude his arguments today following which Anand Grover will commence his arguments.
  • K V Vishwanathan starts with explaining that govt. has failed to show how Aadhaar has resulted in savings. Explains the kinds of frauds possible in PDS scheme- eligibility, quantity and quality fraud.
    • Says that Aadhaar based authentication, at best, helps only in identity fraud and none others.
    • Reads the case of S & Marper explaining how the statistics shown by the govt. regarding savings have been misleading.
    • Says that ABBA doesn’t roll out the middle man. It only puts the machine in between.
    • Says that the studies on which the govt has relied for savings are old studies, some of which were conducted even before ABBA was in place.
    • Says that the govt. has failed to show that the savings and better targeting are of magnitude justifying the infringement of rights. Says it is disproportionate. Reads out Selvi case in this context.
    • Says that the State failed to take into consideration less- invasive or alternate measures which could achieve the same purpose.
    • Reads out the court’s assesment in the ECHR decision of Peck v. UK. wherein examination of alternative means to achieve same object was mandatory.
    • Says that in present case, there were less invasive alternate methods available eg. Smart cards and social audits under NFSA, food coupons, etc. However the State didn’t examine such alternatives, thus failing to discharge their burden u/a 21.
    • Says that Aadhaar Act was drafted on the premise that privacy is not a fundamental right. It wouldn’t have have drafted this way, had it been enacted after the Puttaswamy judgment.
    • Reads the case of Belfast City Council v. Miss Behavin’ Ltd.
    • Says that the legislature didn’t try to strike balance between the competing rights.
  • Justice Sikri says that privacy is not a fundamental right was the argument of State in the court. Asks if it can be presumed that even the legislature did not have it in mind while enacting the statute.
  • K V Vishvanathan says that the provisions of the statute do not show that privacy was considered at all. Also, the govt. made this contention while defending the said statute in the court.
    • Refers to the directive by DoT using Aadhaar for mobile verification. Says that order in Lokniti foundation case never gave an explicit direction to use Aadhaar. Referring to misinterpretation of order by Union and challenges cell phone linking.
    • Says that there’s no contract or law. And a contract b/w DoT and Licensee cannot be used to impose Aadhaar on me.
    • Concludes by pressing for extension even in Section 7 notifications. Pleading with A-G not take this in an adversarial manner.
  • Senior Advocate Anand Grover commences his arguments. Says that he will show:
    • 1. The whole architecture of Aadhaar is beyond the Act. Act is only one small part of it. 2. No security in place to ensure that the data remains secure and private. Allows data to move outside CIDR. 3. Serious breach of privacy. Thus, project has to stop. Note: Anand Grover is appearing on behalf of petitioners in the matter of Mathew Thomas v. Union of India.
    • His first point is that there are vast swathes of the Aadhaar project not even regulated by the Aadhaar Act.
    • Submits that under the Act unauthorised and excessive data is being collected.
    • Further points out towards illegal sharing of Aadhaar data- with various State Residents Data Hub.
    • Says that CIDR is protected but data is distributed at all sorts of locations which are not protected.
    • Refers to the UK national ID project which was discarded.
    • Says that govt. had claimed that all the data in SRDH had been destroyed. Rubbishes the suggestion of Union that all Biometrics had been destroyed. That cannot be done just be deleting it from one place.
    • He says just pressing a delete button is not enough and that data destruction is a complex process including harddisk shredding etc. It is a complex process.
    • Refers to 2016 Strategy Overview document and how there is an admission of aggregation of transaction record. Such aggregation is unlawful and unconstitutional
    • Asserts that the very aim of Aadhaar is Section 57 to facilitate corporates to be able to accurately build profiles of people when all databases are seeded with Aadhaar.
    • Now comes to risks. Gives an example that authentications done in case of a tuberculosis control programme can disclose health info of a group of individuals within that region.
    • Says that Section 59 doesn’t save any action which is ultravires the Aadhaar Act.
    • Refers to UIDAI app of Update Client Lite and its faculties and shows how they have absolutely no regard for access control or privacy.
    • Closes up his first proposition that there are several parts of Aadhaar project that have no sanction by law and they should all be struck down straightaway irrespective of the constitutional vires of aadhaar Act.
    • Second point is that Biometrics cannot and just does not work for the purpose and it is unreasonable to use for the purposes of the Act.
    • Says that one necessarily cannot have a unique identity. Gives example that a thumbprint can match with one person in a million. By using a thumb print and the iris both, one can narrow down but still, it will not be unique.
    • Refers to Biometrics Standards Committee report and then the Parliamentary Standing Committee report of 2011. Points out the defects that they had observed with respect to the use of biometrics. Says that it was assumed that the iris cannot be changed.
    • However, a study shows that within three years, quality of iris changes.
    • Refers to their own admission in a case wherein govt. had said that iris will result in a huge number of false matches. They knew fully well the limitations of biometrics and still continued!
    • Refers to Hans Varghese Mathews paper, Iris POC and Kevin Bowyer paper on Iris ageing. Which, for 1.2 billion of population, stated a deduplication ratio of 1/121- far too high.
    • Says that biometrics results in exclusion which is violative of Art. 21.
    • Now comes to the contracts of UIDAI with foreign agencies for multi-modal biometric systems rendering it ‘insecure ab initio’.
    • Says that these agencies had access to everything. Reads the access provision- clause 3 of BSP agreement which says that these agencies shall process all personal data in accordance with the law.
    • Says that the Act specifies that no one else is supposed to have all these information. However, these agencies had access to all the data.
    • Comes to his next submission. Says that there’s a complete failure to ensure the safety of data which is required under the law.
    • Says that because of the inherent personal nature of data, State has to ensure its protection. If it can’t ensure it, it cannot take such data.
    • Says that fingerprints can be duplicated very easily. Gives several examples where it has taken place.
    • Says that UIDAI has not stopped accepting authentication requests from unregistered devices. Highlights the level of callousness.
    • Says that all security measures are ad hoc. As when problem arises, measures are devised to cover it.
  • Bench rises for lunch. Anand Grover to conclude his submissions post lunch.
  • Bench reassembles after lunch.
  • Anand Grover to continue.
    • Takes the court through the Aadhaar Data Security Regulations. Says that he has challenged various Regulations on the basis of excessive delegations.
    • Asks that once interim order is passed, can the executive- by a notification override the orders? Refers to various notifications u/s 7.
    • Refers to the case State of Bihar v. Rani Somnath Kumari that all persons are duty bound to follow the orders of the court once it has been passed for so long as it stands.
    • Now expands on the foreign decisions.
    • Summarises that Aadhaar project is larger than the Aadhaar Act. UIDAI has facilitated data transfer in contravention of the Act. Further says that no security to the data of the individuals being collected.
    • Submits that Aadhaar project and section 7 has to go.
    • Concludes his submissions. His return submissions can be read here.
  • Senior Advocate Meenakshi Arora has commences her arguments on surveillance.
    • I will also argue that Aadhaar makes individual identity dependent upon an identification mechanism that the individual cannot control.
    • At the time that Kharak Singh was decided, the form of surveillance was individual and targeted. Today, targeted surveillance is a thing of the past.
    • The ECHR in Marper recognised that it is not necessary the actual surveillance take place, but that a reasonable apprehension of surveillance causes a chilling effect.
    • Meenakshi Arora discusses the Marper case, where data retention, justified in the anvil of crime-prevention, was invalidated by the ECHR.
    • The question is not whether surveillance is happening in real time, but whether the existence of the data in that form can be used in that fashion.
    • Now discusses the ECHR case of Szabo.
    • In Szabo, the stated justification for secret surveillance was national security and crime prevention. A similar argument has been made to justify Aadhaar for bank linking, telephones, income tax etc.
    • In Szabo, the ECHR held that the very existence of a law permitting secret surveillance, without adequate safeguards, was a violation of privacy. In other words, a reasonable risk of surveillance, felt by individuals, is sufficient.
    • The State says that Aadhaar is required as a preventive measure. It is this justification that was considered and rejected by the ECHR in Szabo.
    • In Szabo, the ECHR considered that the lack of recourse that an individual had was one ground for violation. The same is the case with Section 47 of Aadhaar, where the individual has no power to complain or file an FIR. Only the UIDAI can register complaints.
    • Discusses the methodology applied by the ECHR, and in particular, the insistence on procedural safeguards against surveillance.
    • Says that a system of secret surveillance that is justified on the ground that it is required to protect democracy can end up undermining democracy.
    • Some discussion between the bench and Meenakshi Arora on the term “quality of law” in the European judgments.
    • The requirement that a law must be “necessary in a democracy” is of particular importance.
    • Meenakshi Arora will continue her submissions on Tuesday. Petitioners will finish their arguments by 1 PM.
  • Towards the end of the arguments, a person, who is a party in person, presented his case before the court stating that due to the non- matching of biometrics, his father couldn’t prove himself alive and thus, couldn’t receive his pension. Since, it happened during demonetization the father did not have enough money and therefore, died. This petitioner requested the court for the abolition of Aadhaar Act.

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