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Final hearing of Aadhaar in Supreme Court – Day 28


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 28: 12 April ’18

Additional Solicitor General Tushar Mehta to conclude arguments for UIDAI followed by Rakesh Dwivedi the last counsel for the State arguing.

  • Tushar Mehta resumes his arguments from yesterday. To finish his arguments on compulsory phone and bank linking.
    • Says PMLA amendment was made considering the larger public interest. He’s reading the relevant provisions of PMLA.
    • Reading Prevention of Money-laundering (Maintenance of Records) Rules. ASG continues defending the PMLA rules.
    • He is arguing how it is not ultra vires the PMLA Act.
    • The power under PMLA Act of the law being able to reach the right beneficial owner of any entity is not under challenge.
  • Justice Sikri interjects saying Rule 9 (4) is challenged on proportionality where there are several other officially valid documents.
  • Tushar Mehta: Aadhaar is the most robust and most fraud proof identity we have now. No biometric auth with other ids.
    • Reading the rules.
  • Justice DY Chandrachud interjects and asks Tushar Mehta to respond to contentions of Mr. Datar.
    • 1. That the Rules are just subordinate legislation and that it is ultra vires Act.
    • 2. There is no provision under PMLA to render a validly opened account inoperational.
    • How is life insurance or health insurance included under the Rules?
    • Shyam Divan also says it is also a question of one time verification v continuous verification.
  • Tushar Mehta says that is the very mischief sought to be remedied.
  • Justice DY Chandrachud says the overall purpose is clear but that we are into the nitty gritty legalities.
  • Justice Sikri raises a question about “Designated Business” under the definition of Reporting Entity under PMLA.
  • Tushar Mehta says may be there are no notifications.
  • Shyam Divan points out that it is defined under 2 (sa).
  • Tushar Mehta now defends that (!) saying these are about prize schemes etc.
    • The intention is very clear, zero tolerance for money laundering and blackmoney etc.
  • Justice Sikri asks if you will ask for Aadhaar even for a person who goes to a casino in Goa for fun.
  • Tushar Mehta says it is absolutely required. Public interest. Interest of the Nation. (It is not a FR violation by govt but FR violation for the nation!)
  • Justice Sikri is not so sure this will measure up on proportionality then and asks doubtfully to Tushar Mehta.
  • Tushar Mehta repeats the “national interest” argument.
  • Justice Sikri asks Tushar Mehta to address the precise points raised by Petitioners.
  • Tushar Mehta wants to first address the question of accounts being non operational…it says it is only temporarily non operational till Aadhaar is given.
    • Next says there is plenary legislation of a valid statute Section 12 and 15 give the statutory status to the PMLA Rules under challenge.
  • Chief Justice of India and Justice Ashok Bhushan says those provisions under the Act cannot give sanction to render a new account inoperative after 6 months …That is the 300A violation alleged by Mr. Datar.
  • Chief Justice of India exposits how Section 12 and Section 15 by any stretch cannot sanction prescribing penalties by Rule making power.
  • Tushar Mehta: Consequence of noncompliance can be prescribed by Rules.
  • Justice DY Chandrachud is not so sure.
  • Justice Sikri and Justice DY Chandrachud roar at Tushar Mehta when he says this is only a consequence of non compliance and not penal.
  • Justice Sikri says when someone cannot withdraw his property, it is a 300A deprivation.
    • Earlier also asked about what about a pensioner who is known to be a pensioner for so many years…what is the need to trouble him and harrass him by not allowing him to withdraw on just the ground of no Aadhaar.
  • Chief Justice of India asks Tushar Mehta to show legal authority to show how Rules may prescribe consequences of non compliance as drastic as this when Act does not provide for it.
  • Tushar Mehta promises he will.
    • Reads a judgment that says Rules once issued are effectively part of the Act.
  • Chief Justice of India and Justice Sikri: but that cannot apply to Rules outside of Rule making power.
  • Chief Justice of India says conditions, limitations, consequences are all different under law.
  • Rakesh Dwivedi, Sr. Advocate…also arguing for the authority interjects and says Aadhaar is mere a condition for opening an continuance of account.
  • Justice Ashok Bhushan points out that the condition mentioned in 12(c) only applies to verification. Not about continuance of accounts etc.
  • Justice Sikri refers to existing accounts and how you can freeze those accounts under the Act…even those validly opened accounts.
  • Bench rises for lunch.
  • Session 2. Tushar Mehta will conclude for the UIDAI.
  • Tushar Mehta says that the prevention of money laundering act is encompassing. The objectives are to find out the real person behind the accounts, and to find it out in other jurisdictions.
    • Says that the number of fake accounts are mind boggling, and threaten the very root of the economy and of national security.
    • Talks about cross-border offences. Says that the minimum we owe to the nation is go and show to the State that we are who we claim to be. This is a minimally invasive requirement.
    • Says that the individual interest of perceived privacy has to be weighed against the public interest. He says that if this is not in public interest nothing can be.
    • Tushar Mehta concludes.
  • Rakesh Dwivedi is the last counsel for the State.
    • Says that he has heard all the counsel for the petitioners with rapt attention. He says that petitioners have argued this case as if it’s “off with the head” like the Queen of Hearts. He says this is an argument in wonderland.
    • Says that he has never felt that he is under surveillance.
    • Says that nobody has been forced to get an Aadhaar. In no city or village or any part of India has anyone been forced. He says that we all have voluntarily gone and gotten an Aadhaar card.
    • Says that we (he’s talking about some lawyers) have all gotten an Aadhaar card though we don’t qualify for targeted delivery for the sake of having one identity because we think it’s a useful thing.
    • Says that if the government wants to surveil me, it has ample means. It doesn’t need Aadhaar. For example, it can monitor bank accounts for unusual activity under a master circular of CBI.
    • Says, which government will wake to surveil farmers tilling the land.  Says that at one time he used to carry a red flag and he went to jail because he was fighting for farmers… is describing his time living in a farmer’s hut.
    • He says it’s ridiculous to think that this government will surveil such people.
    • Says that the reality of India is that the top 1% have 73% of the wealth. And the petitioners are saying that the government is spending time in real time surveillance.
    • Says that the petitioners have engaged in rhetorics. Repeats that no government needs Aadhaar to surveil anybody.  He says that every time he made a speech, some person from the special branch was present.
    • Says that surveillance has been happening. But you don’t need Aadhaar for it. Says that if the government wants to surveil it will do so without Aadhaar.
  • Justice Chandrachud says that the point is that technology is a powerful enabler of surveillance.
    • Says that the misuse of data is one of the most pressing problems.
    • Elections of countries are being swayed with the use of data and technology.
  • Rakesh Dwivedi asks, “which data?” Says merely saying “metadata” doesn’t lead us anywhere. Aadhaar data cannot be compared with Google and Facebook algorithms. UIDAI doesn’t have those kinds of tools.
    • Says that we don’t have learning algorithms. He says that the petitioners have been trying to confuse the Court. He says that S 32 prohibits the UIDAI from knowing the purpose of a transaction.
  • Justice Chandrachud says that that’s only a prohibition on sharing.
  • Rakesh Dwivedi says that it is for the petitioners to show that the Act allows such powers.
  • Justice Chandrachud says that the Act doesn’t preclude you from acquiring those powers.
  • Rakesh Dwivedi says that if the Court finds there is such power, it can strike it down.
    • Says that the only purpose is authentication, authentication, authentication. There is no power provided under the Act to analyze data.
  • Justice Chandrachud asks: then why do you store the metadata?
    • Says that when the CEO of UIDAI made his presentation, technical experts showed that they learnt a lot about him from that.
  • Rakesh Dwivedi says that I don’t know about Pandey. But I challenge anyone to disclose what they know about me, on any media.
    • Says that he is issuing an open challenge to the technical experts.
    • Meta data is also limited. The meta data is of authentication records and it does not reveal anything about an individual.
    • Meta data consists of authentication request, result of authentication and the time of authentication only.
  • Justice Sikri says that metadata tells you a lot about the nature of a transaction.
  • Rakesh Dwivedi says that the UIDAI doesn’t know this.
  • Justice Sikri says that you will know if the authentication request has come from a hospital, or a chemist, or…
  • Rakesh Dwivedi says that it doesn’t work like that.
    • Says that the authentication request will come from, say, . I won’t know if it comes from a hospital, or from anything else.
  • (On the other side, Shyam Divan has his head in his hands.)
  • Rakesh Dwivedi says, let’s assume an authentication request comes from Apollo Hospital. I won’t know which Apollo it is in the country – Chennai or Mumbai or Delhi. I’ll only know that it was Apollo.
    • Says that the only way in which surveillance can happen is if the government breaks the law and colludes with the UIDAI and sends the CBI to find out if it was Apollo Delhi or Apollo Chennai.
    • Says this is far-fetched.
  • Justice Chandrachud says that the problem is not only at your end. We still don’t have a data protection law. What about the requesting entity. The requesting entity can store the data, considering there is not even a robust data protection law. Commercial information about an individual is also a gold mine. Surveillance doesn’t have to be interpreted in the traditional sense.
  • Rakesh Dwivedi says that what will the requesting entities surveil.
  • Justice Chandrachud says that commercial surveillance is exactly what is happening he says that this will happen to your farmers as well.
  • Rakesh Dwivedi says that individual information about me is trash. It has no worth. He says, what use are my photographs to anyone. He compares it with molasses thrown out by factories. He says it later became a goldmine but at that time it was a nuisance.
    • Says that Mr Divan might be worried about privacy, but I am not. And I have spoken to hundreds of people and they’re not either.
  • Justice Chandrachud says disagrees. He says that it’s not about whether 1. 9 billion people care about privacy, but about information being unavailable.
  • Rakesh Dwivedi says that fingerprint information is only of interest to palmists and for the growth of palmistry.
  • Justice Chandrachud says that the concern is not about fingerprints per se.
    • He says that the American cases are about the localised use of fingerprints such as entering some place.
    • He says the issue is storage and then use for authentication. Under Aadhaar, fingerprints are means for storing data in a central database for the purpose of authentication. That’s a problem.
  • Rakesh Dwivedi says that their only pleading is that the UIDAI can surveil. There is no pleading by the Petitioners that the requesting entities can surveil. He says that there is no challenge.
    • Saying that the moment I put my fingerprints, it is encrypted, and transmitted in encrypted form.
    • Also the data is not shared with anyone.
    • Says that information can be shared only in accordance with the Aadhaar Act. He says that there is complete protection. One can’t envisage breaches and ignore all this.
    • Even EU data protection law does not have the kind of protection that Aadhaar act has. There is no reasonable expectation of privacy wrt demographic information.
    • Says that he understands if people have a problem with the implementation and enforcement of the Aadhaar act. But there’s no problem with the law and the technology.
    • He says that the Petitioners are NGOs, they are better off suggesting improvements than picking at all the stitches.
  • Justice Chandrachud says that Section 29(3)(b) is causing great trouble. It allows for sharing.
  • Justice Chandrachud and Justice Sikri point out that S 29 read with 57 allow for information to be shared with third parties even under contracts.
    • He says that this is why you need a data protection law, to specify the terms of consent and an overseeing mechanism.
  • Rakesh Dwivedi says that in any case you can never share core biometric information under Section 29(1).
  • Chandrachud J says that this Act is not just about Section 7 or the UIDAI, but goes much beyond, and must be interpreted very carefully.
  • Rakesh Dwivedi says that the Court can interpret the Act to make it reasonable. The court should not be a crusader, but a medical man.
  • Judges conferring.
  • State lawyers also conferring.
  • Justice Chandrachud says that 29(3) seems to make it possible to share biometric information.
  • Rakesh Dwivedi says that it can be read down to exclude sharing of biometric information.
    • Says that the requesting entity cannot retain a copy of the PID block. So it must be read like that. The core biometric data is kept in the CIDR and cannot be shared.
  • Justice Chandrachud says that the UIDAI can only control what it has control over.
  • Bench rises.
  • To continue on Tuesday.The State is likely to finish by the end of next week.

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