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 30: 18 April ’18

Senior Advocate Rakesh Dwivedi the last counsel for the State/UIDAI arguing.

  • Senior Advocate Rakesh Dwivedi resumes his arguments.
    • Refers to Section 7. Continues with his argument on probabilistic method. Says that the algorithms which are probabilistic are not all identical.
    • Says that Parliament was conscious of the exclusion that could happen. It was also aware of the digital divide. Hence, provided three alternatives under section 7.
    • Says can there can’t be denial of service. Option to furnish proof of possession of Aadhaar number under section 7 if authentication can’t be done.
  • Justice DY Chandrachud : Asks if proviso to section 7 applies to third alternative.
  • Rakesh Dwivedi: Replies in affirmative. Says that it is applicable in case an individual has applied but has not been assigned Aadhaar number.
    • Reads the definition of ‘Enrolment ID’ under the regulations.
    • Further reads Reg 12 pertaining to section 7.
    • Says that there is no question of denial. Denial is something that should not happen, ought not to happen. Though some more actions would be required to ensure this.
  • Shyam Divan requests the bench to direct respondents to reply to the supplementary questions submitted by the petitioners for them to prepare for rejoinder.
  • Chief Justice of India asks if Rakesh Dwivedi will finish tomorrow.
  • Rakesh Dwivedi says that he will be able to finish by Tuesday.
  • Bench rises for lunch.
  • Bench reassembles post lunch.
  • Rakesh Dwivedi continues with his submissions.
    • In the context of PDS system, reads the notification issued under section 7. Says that for limited purpose, ration cards are also included. Says that if for some reason, one member of the family is unable to authenticate, any other member of family can come for authentication
  • Justice DY Chandrachud: Asks whether there is any isolated pocket in country where Aadhaar services have not been able to reach.
  • Rakesh Dwivedi: In such a case, alternative methods will apply.
  • Justice DY Chandrachud asks the permeation rate in states like J&K, Sikkim, etc.
  • Rakesh Dwivedi says he will get back to him with figures.
    • Says that as of now-pending the judgment, even if someone has not enrolled for Aadhaar, there’s no compulsion under section 7. There’s still time.
    • Says that third alternative under S. 7 can apply only if the enrolment process has begun.
    • Says that in case of PDS scheme, the central govt. is competent to replace the identification card with which benefit is to be obtained if it thinks that the latter is more reliable. Thus, it can replace the ration card with Aadhaar card.
    • Says that every institution will have some kind of identification procedures and we will have to follow them. These are regulatory processes.
    • Says that when you identify, it is a matter of dignity. Because you are recognised. We all strive to get recognised. It is a matter of pride.
    • Says that no right is absolute. Regulations are permissible.
  • Justice DY Chandrachud says that there should be a choice of identity. If the choice is not there, it is not proportional.
  • Rakesh Dwivedi: If you have to get benefits from an institution, you should comply with the requirements prescribed by it.
    • Says that Aadhaar is unique and universally applicable. No language barrier like other ID cards.
  • Justice DY Chandrachud says that my biometric are attached to every transaction I undertake, it ceases to be just an identification mark.
  • Rakesh Dwivedi says that only one finger or one iris is used for authentication. It discloses no information.
  • Justice DY Chandrachud: Fingerprint by itself doesn’t disclose any info. But, when it attaches with all the other information, it forms a wealth of information. There comes the need of data protection.
  • Rakesh Dwivedi: Says that data is disaggregated between different REs.
  • Justice DY Chandrachud: In such a case, aggregation of data is all the more possible.
  • Rakesh Dwivedi: Says that in most cases, authentication is done only once. Eg. PAN. It is for lifetime. For sim cards, it is done only at the time of obtaining it. So, where is this multiplication of authentication from morning to evening coming from?
    • Says that realistically speaking, there’s no trail of authentication from morning to evening. No real time tracking is done.
  • Shyam Divan interjects saying that the demo of withdrawing Rs 100 using a thumbprint was shown in the court. That’s tracking.
  • Rakesh Dwivedi: Where is it provided in law that you need to give thumbprint every time you transact? You only have to link it with your bank account.
  • Shyam Divan gives example of being asked for his thumb impressions everytime he needs to open a Fixed Deposit.
  • Rakesh Dwivedi remarks that not everybody is capable of opening FD everyday. It is done only once or twice in a year generally.
    • Now comes on dignity. Says that there are two parts of preamble.
    • “To secure to all its citizens…” and “to promote among them all…”
    • Says that securing justice is a part of the basic feature of the Constitution. Says that minimum requirements to enable a man to survive…to live is a position duty of the State. And it is for these minimum requirements that the Acts like NFSA, etc. are there.
  • Justice DY Chandrachud: Constitution protects dignity in all its forms.
  • Justice Sikri says that food is a part of dignity and so is privacy. When there’s a conflict between the two, it has to be considered which should prevail. But, why can’t we say that there’s no conflict. Both are to be ensured.
  • Chief Justice of India: The point is when you take fingerprints for Aadhaar, it gets stored in Aadhaar. This is an invasion of right to privacy.
  • Rakesh Dwivedi: Any system which involves biometrics will require storage of biometrics- either at single point or multiple.
  • Chief Justice of India: Minimal intrusion with legitimate interests have to be ensured.
  • Rakesh Dwivedi: Providing services and benefits is to ensure dignity and liberty of individuals. Which is a legitimate interest.
    • Reads relevant articles from UDHR and excerpts from Kesavanand Bharathi v. State of Kerala on dignity and human rights.
    • Reads the NALSA judgment. Says that positive obligation lies on the State to ensure the dignity of the citizens.
    • Refers to German cases which specifically say that minimum conditions have to be provided to ensure the basic human rights.
  • Bench rises for the day. To continue tomorrow.