Final hearing of Aadhaar in Supreme Court – Day 29


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 29: 17 April ’18

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

  • Rakesh Dwivedi continues his submissions on behalf of UIDAI.
  • Rakesh Dwivedi talks about the presumption of constitutionality, and how Courts should first make small repairs if they find that laws are defective, instead of striking it down.
    • Reads out S 8 of the Aadhaar Act. He says that sharing and use of information is strictly confined and limited to the authentication process.
    • Says that Section 29 of the Aadhaar Act should also be accordingly limited to the authentication process, and as per Section 8, core biometric information can never be shared.
    • You can read the relevant sections of the Aadhaar Act here.
    • Says that in order to avoid even the possibility of surveillance, the Court can give a narrow interpretation to Section 29, and limit sharing of information.
    • In response of Chandrachud J’s questions about ensuring security at the back end, he says that this can be done through technical specifications and through professional audits.
  • Justice Chandrachud points to Sections 8(2), 8(3) and 29. 8(2) says that the requesting entity shall obtain the consent of the individual before collecting identity information for the purposes of authentication. Then, it can be submitted for authentication to CIDR.
  • Rakesh Dwivedi says that the information can be used only for authentication purposes. Now reads S 29 (sharing). He says that under S 29, all that can be shared is non-biometric data.
  • Justice Chandrachud says that the requesting entity will know the purpose of the authentication.
  • Rakesh Dwivedi denies it. He says that the requesting entity will not know the purpose of the authentication.
  • Justice Chandrachud says that section 8(3) read with 29(3) makes it clear that RE will anyway know/have the purpose of authentication.
  • Rakesh Dwivedi disagrees.
  • Justice Chandrachud  says that 8(3) makes that clear.
  • Rakesh Dwivedi says that if I go to Apollo, Apollo will not transmit why I have come – to buy medicine or to meet a doctor. The only information transmitted will be that the authentication is sought from Apollo.
    • Says, suppose I go to the airport and have to authenticate at the gate. He says that the Airport Authority will not be telling the requesting entity where I’m going or what flight I’m taking.
  • Justice Sikri says that the problem is that S 29 gives a handle to share the information.
  • Rakesh Dwivedi says that core biometrics cannot be shared.
  • Justice Sikri says that the uses of the authentication can be shared.
  • Rakesh Dwivedi says that the only use is a yes or no response to a authentication request.
    • Says that I have no other information.
  • Justice Chandrachud says that this argument may be valid qua the UIDAI, but not qua the requesting entity.
  • Rakesh Dwivedi says that if the Court has that doubt, it can interpret the Act to exclude that possibility.
  • Justice Sikri asks why Section 8(3) is needed in that case.
  • Justice Chandrachud not sure about RE not collecting purpose etc. Says, suppose Apollo is a requesting entity, or submitting information to a requesting entity. There will be a record of the fact that an individual has gone to a hospital and authenticated, say 122 times in 6 months. This is something that pharmaceutical companies and insurance companies can mine. Aadhaar aggravates it.
  • Rakesh Dwivedi says that you don’t need Aadhaar for this. You can just go to ten hospitals and find out.
  • Justice Chandrachud says that until we have a data protection law, this is a problem.
  • Rakesh Dwivedi says that no data protection law can be as strong as the safeguards in the Aadhaar Act.
  • Justice Chandrachud says this is an exaggeration. He says, look at the EUGDPR, coming into force next year.
  • Rakesh Dwivedi says that we don’t need to copy. We can just see the control and punitive provisions in the Act.
    • Says privacy protection under Aadhaar Act is better than EU GDPR. Says he will show how and EU itself is about flow of data across different countries borders.
    • Says that, in life, you can never have a hundred percent assurance. A man in Kerala went to make a speech, and there he died. Even God can’t give us hundred percent assurance.
    • Says that none of the petitioners have pointed out what more we can do.
  • Justice Chandrachud says that on Rakesh Dwivedi’s reading, 8(3) and 29(3) can be excised from the Act.
  • Rakesh Dwivedi says that can be done, but in his submissions, it doesn’t need to be cut, only clarified.
    • Says that the design of the Act is not to aggregate information, and that the Court can give it an interpretation that prevents aggregation or data analysis.
  • Justice Chandrachud says that there are no limits to commercial ingenuity.
  • Justice Sikri says that the information about medical treatment will already be with the hospital, and that they may not need Aadhaar to get more information.
  • Rakesh Dwivedi agrees. He says, let the petitioners show what Aadhaar is adding in terms of information already available.
  • Justice Sikri says that the only apprehension is the apprehension of misuse.
  • Justice Chandrachud says that there is a real apprehension is even elections can be manipulated thanks to data. He says that the task is to introduce safeguards that ensure that the Act achieves its purpose and is not an overreach.
  • Rakesh Dwivedi says, don’t bring Cambridge Analytica into this. He says that we have no learning algorithms like Google. He says that petitioners have tried to confuse the Court by talking about algorithms.
    • Says that he has bought 50,000 rupees worth of books in the last four months to learn about algorithms, and that he still knows very little. But nonetheless, he repeats that UIDAI only has a matching algorithm, not a learning algorithm. Our biometric match algorithms are simple and simplistic. No analysis done.
    • Says that petitioners have created hyperphobia. This is not an atom bomb but just something that identifies me to myself.
  • Justice Chandrachud: Our limitation of knowledge should not make us look at the issue with blinkers, when we are laying down the law for posterity.
  • Rakesh Dwivedi says that petitioners have argued for a smart-card because smart-card is an entrenched vested interest in Europe, and if the Indian experiment succeeds, then they will be in trouble. The smart card lobby doesn’t want Aadhaar to succeed. Google doesn’t want Aadhaar to succeed.
  • Justice Chandrachud says that the concern is not so much with UIDAI, but with the interface with the world outside. He says controlling the UIDAI is easy. He says, nobody may be able to control the world outside. Aadhaar does not exist in an isolated world. We cannot treat it that way.
  • Rakesh Dwivedi says there is value in allowing personal information flow even to pvt players. When people know what I eat, after all it popularises the dish.
    • Repeats that there is no matching algorithm.
  • Shyam Divan has just walked out of the Court.
  • Rakesh Dwivedi comes to Section 28 of the Act.
    • Talks about Section 57. He says that it’s a limited exercise. Nobody can be enrolled as an RE unless he shows that he needs to have authentication.
    • Says, for example, if Dominos wants to become an RE, we will first ask them why they need it.
  • Justice Sikri still asks about how this will control AUAs REs etc.
  • Rakesh Dwivedi says UIDAI, AUAs etc are all belong to the same scheme or structure under the Act.
    • Refers to Section 57 says use has to be pursuant to law or contract. Cannot be open ended.
    • A pizza vendor or paanwala or a chaaiwala cannot ask for Aadhaar. Not so open ended.
  • Justice Chandrachud : What is the nexus of Section 57 with consolidated fund of india?
  • Rakesh Dwivedi: Money bill point to be dealt with by A-G later.
  • Justice Chandrachud: Not just money bill..even on the point of nexus for compelling state interest…. asks what is the purpose of opening up the Aadhaar platforms to private players.
  • Rakesh Dwivedi says that the public/private divide is changing. Even Reliance is entering into defense. Private parties are entering into Telecom, aviation etc.
    • Says that in any case, these private players are funded from banks, where we have deposited money. So whether private or public, we the people are paying.
    • Says that private parties performing public functions can be brought under constitutional norms.
  • Justice Sikri: in many cases, public sector entities are handicapped because of the strict vigil whereas pvt sector has more freedom.
  • Rakesh Dwivedi agrees and says that may be another reason why we may want to control pvt sector corporations to a higher degree.
    • Says that this is a debate for another day. Right now all that’s necessary to know is that the private players are within the control of the Act.
  • Judges conferring about something.
  • Rakesh Dwivedi now comes to Petitioners’ submission on numbering people.
    • Says that the Petitioners have claimed that we are numbering human beings and drawn comparisons with Hitler. He says that Petitioners seem to think that the history of numbers began and ended with Hitler.
    • Says that the whole of history is the history of numbers, and it began with India. He cites a book by George Ifra (sp?).
    • Says that the proximity card to enter the Supreme Court has a number. He says that air tickets have a PNR number.
    • Says that the problem with Hitler’s numbers was that it was based on identity, but Aadhaar does not ask for identity. He says that even credit cards have numbers.
    • Says that Stephen Hawking has written a book called God Made Integers, where he talks about mathematicians.
    • But for these numbers and but for the mathematicians, world would have made no progress.
  • Justice Chandrachud asks whether Rakesh Dwivedi bought this book after his 50000 rupee investment on algorithm books.
  • Justice Sikri: Their arguments was about reducing personhood to a mere number.
  • Rakesh Dwivedi says that numbers are beautiful. He says he doesn’t understand why petitioners have vehemently argued that “we are being numbered.”
  • Justice Chandrachud asks how Aadhaar goes from being an entitlement under Section 3 to becoming a mandate.
  • Rakesh Dwivedi says that the issue of linkage should be examined on a case to case basis.
    • UIDAI cannot make aadhaar mandatory. Under Section 7 govt will make mandatory. This Court can look at each notification and test its validity.
    • Aadhaar for PDS may be good, under PMLa may be bad. The privacy tests will have to be applied also to each notification. Not for the Act!
    • Says that if the Court feels that in any particular situation the Court feels that the government is going too far with linkage (impermissible invasion), it can strike that down, but that’s not a ground to strike down the overarching Aadhaar Act. It would be destroying a great infrastructure that has been created for Aadhaar
    • ays that the entire UIDAI has been built from money from the consolidated fund of India.
  • Shyam Divan is back in Court.
  • Rakesh Dwivedi says that the Aadhaar Act is people-centric on the one hand, and UIDAI-centric on the other.
    • Says that these days biometric authentication is spreading everywhere. If a company wants to institute biometric attendance, it can approach UIDAI. But a chaiwalla or paanwalla has no reason to enter into a contract under Section 57.
  • Bench rises for lunch.
  • Post lunch session. Hearing continues.
  • Justice DY Chandrachud asks Rakesh Dwivedi if he is correct in understanding that with Section 7 plus Section 57 cover the entire gamut of uses of aadhaar.
  • Rakesh Dwivedi: Section 57 is a limitation, not an expansion. If 57 was not there anyone could be an RE. There has to be a prior law or contract.
    • There is no guarantee that UIDAI will accept the AUA application of a paanwala, beediwala or a chaaiwala.
  • Justice Ashok Bhushan is not so sure.
  • Rakesh Dwivedi says that even under Section 57, the UIDAI will exercise supervisory control over private parties using Aadhaar. He says that there must be a law or a contract, and that’s an important limitation under the Act.
    • Says that because of this, all the State Resident Data Hubs have been destroyed.
  • Rakesh Dwivedi repeats that proviso is the safeguard. The pvt person have to first apply and only UIDAI can approve the AUA application.
  • Justice DY Chandrachud is not so sure…Section 57 does not contemplate any such power to UIDAI to refuse.
  • Justice Bhushan says 57 does not even refer to UIDAI.
  • Justice DY Chandrachud asks Rakesh Dwivedi not to always refer to Paanwala but take the example of an insurance provider. “Can you refuse their application?,” he asks.
  • Rakesh Dwivedi: The critical expression in Section 57 is “pursuant to”..which means prior contract..in other words, someone can become an RE only by showing a prior contract.
  • Justice Khankwilkar is not so sure. For an RE, interface with UIDAI comes first…the contract with user comes later.
  • Rakesh Dwivedi says, not so for 57.
    • Says as long as security is concerned, both safeguards under this Act as well as safeguards under IT Act will apply vide Section 30.
    • Reads Section 66B and 66C and 66E of the Information Technology Act, 2007.
    • Says as long as security is concerned, both safeguards under this Act as well as safeguards under IT Act will apply vide Section 30.
    • Refers to Section 72, 72A and 76 of the Act and how they fortify the security of the Aadhaar eco system.
    • Similarly he says the Resonable Security practices Rules 2011 also applies to all agencies operating under the Aadhaar system.
    • Refers to how the 2011 Rules refers to all biometrics including voice samples and DNA but our Act only has two biometrics namely fingerprints and iris scans.
  • Justice Khanwilkar points out that body corporates under 2011 Rules have a narrow definition in 43A of the IT Act to include only commercial enterprises.
  • Rakesh Dwivedi comes back to Section 57 and says how contract there is entirely based on consent.
    • As far as we, UIDAI, are concerned, we do not make it mandatory. It is fully consensual except Section 7. Each Section 7 notification may be examined separately for constitutionality.
    • Now comes to his next point defending against the excessive delegation charge in definition of biometric 2 (g).
    • He says 2 (g) has the words “Such other” … which means only those biological attributes which share characteristis such as fingerprints or iris. Some of those characteristics:
      • – non intrusive
      • – enhances accuracy
      • – capable of used for instant authentication etc…
    • DNA cannot come within the definition of 2 (g).
    • Goes to his next point on how empowering Aadhaar is for welfare purposes.
    • Earlier many labourers and field workers never went to PDS shops and their share used to be swindled away. Now, they have to come face to face with the PDS authorities.
    • That necessity of coming face to face deepens democracy. Revolutionary. Today there is a change. People are participating more. For example there was a judgment and there were protests following that judgment. There is a palpable change.
    • The fingerprints is a huge safeguard. Which is why other ids cannot be used. No deduplication possible. Petitioners are arguing to do away with deduplication and go on merrily like other. ..
    • Also says no other id is widely and universally held like Aadhaar.
    • Now comes to the BSP point.
    • UIDAI is only a licensee of BSP software. Entry to server rooms fully under control of UIDAI officers.
    • Demographic data is not given to ABIS.
    • The sourcecode or IP is with the BSPs..but that is no source of insecurity. Just like Banks using Oracle/SAP etc.
    • Next argument about probabilistic v deterministic.
    • This is also a complex concept for me. The greatest enemy of knowledge is not ignorance but illusion of knowledge. Your lordships should forgive me for proceeding on a mere illusion of knowledge given my limitations.
    • Probability governs us everywhere. Nothing in this world is deterministic.
  • Justice DY Chandrachud does not like that proposition. He says can we allow an inherently probabilistic system to affect FRs.
  • Justice Sikri… you say 95% accuracy, they say its a smaller number.
  • Rakesh Dwivedi: they are all valid rejections many of them. There are other interests which want Aadhaar to fail which are hyping up aadhaar auth failures. Almost all affidavits are about auth failures not dedup rejections.
  • Justice DY Chandrachud: Reetika Khera has filed affidavits here …we cannot ignore the facts brought before us. Exclusion is a given.
  • Rakesh Dwivedi also applauds Mr. Divan to have accompanied Prof. Khera on one of her trips to a village trying to see the working of Aadhaar authentication.
    • Says  all of it is an implementation problem which needs to be remedied. But source is not a systemic fault.
  • Bench rises. To continue tomorrow.
  • Rakesh Dwivedi says he should be able to complete by tomorrow. Or at max Thursday.

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.

Final hearing of Aadhaar in Supreme Court – Day 27


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 27: 11 April ’18

Additional Solicitor General Tushar Mehta arguing for the UIDAI.

  • Bench assembles.
  • Tushar Mehta continues his arguments.
    • Wants to place reliance on Para 92 of the Binoy Viswam (Aadhaar PAN linking judgment) judgment as reported in 2017 7 SCC 59.
    • Says the question of whether this law could have been passed by parliament in violation of interim orders of the SC is no longer open after Binoy Viswam when it clearly says 139AA is fully valid on that point.
    • Only thing open after Binoy Viswam is the challenge to Aadhaar under Article 21.
    • Continues reading Binoy Viswam that deals with how interim orders were passed when Aadhaar Act did not exist and did not preclude Parliament from enacting 139AA.
    • It has already been proved that Aadhaar linking with PAN will help curb money laundering and black money, and prevent tax evasion. This question is not open to challenge anymore as it has already been decided by this court.
    • He next reads the paras 103 and 104 of Binoy Viswam which found rational nexus of 139AA with the object sought to be achieved. Says that is the facet of proportionality.
    • Balancing of interests is also a facet of test of proportionality.
    • Emphasizes that biometrics will help curb the growth of shell companies. Says this is again a facet of reasonableness and proportionality.
    • Is reading excerpts from Binoy Viswam judgement on reasonable classification.
    • Want to point out the gain to the nation because of Aadhaar.
    • Want to read Modern Dental Justice Sikri’s judgment quoted in Binoy Viswam. Says that balancing of interests is also a facet of proportionality, which was propounded in the judgement of modern dental college.
    • Quotes Aharon Barak’s ( Israeli jurist) definition of proportionality – four tests of proportionality of a law.
      1. Public purpose.
      2. Measures have rational nexus to the purpose.
      3. Necessity of the measure.
      4. No lesser alternative measure available.
    • Measure to be justifiable as reasonable and necessary in a democratic society.
    • Reads paras 124 and 125 of the Binoy Viswam judgement which answers whether Aadhaar PAN linking is in public interest and satisfies the test of proportionality and reasonableness.
    • Reads the part in the judgement that talks about inequality and corruption in India that prevents benefits from reaching the rightful beneficiaries. Says that India is far behind sustainable development when compared to China and other South Asian nations. Arguing for necessity of a measure like 139AA.
    • Mentions that Aadhaar will help law enforcement curb terrorism.
    • Reads parts in Binoy Viswam that extracts from “An Uncertain Glory: India and its Contradictions” written by Prof. Amartya Sen and Prof. Jean Dreze on widening inequality in India. (Recall that Prof.Dreze has filed affidavits in this case against Aadhaar!)
    • Now reads parts in Binoy Viswam that quote the Shah Committee (SIT on Black Money) recommendations.
    • Wants to answer the question whether the entire population can he treated as criminals for Aadhaar. Quotes an American judgment that said screening airline passengers is an administrative service. It’s not to treat everyone as a terrorist but to safeguard the larger public
  • Justice Sikri says that the facts in the American case cannot be compared to the facts in the present case of Aadhaar.
  • Tushar Mehta quotes more judgements on the American fourth amendment (search and seizure)
  • Justice Chandrachud doesn’t seem convinced about the relevance of these cases in the present case of Aadhaar.
    • Says offences against terrorism or public health are at a different footing than fiscal statute. Proportionality will be of different nature.
  • Tushar Mehta says that he wants to show that whenever there is a statutorily allowed intrusion of privacy it does not mean there’s presumption of guilt.
    • Says there’s no random scrutiny of people in the name of Aadhaar. The exercise of linking Aadhaar with bank, phone etc is only done to weed out fake or duplicates.
    • Drops the figure that 33000 untaxed money has been found by PAN Aadhaar linking even on voluntary basis.
  • Bench rises for lunch. Tushar Mehta will start his submission on PMLA rules post lunch.
  • Post lunch Tushar Mehta continuing for the UIDAI.
    • IT Dept uses third party information to identity cases of defaulters. Rule 114b requires quoting of PAN to file returns. A person can easily say that they don’t have PAN and then evade taxes.
    • The immediate benefit from compulsory linking of PAN is that it helps the IT department in tracking tax evasion.
    • Analysis from linking shows that many people do not quote PAN for large transactions. 1.6 crore such transactions have been identified in the last two years. PAN of the person was there in the database but not in the form that he filed.
    • Rs 33K crores worth of transactions have been detected, and this is possible only through linking of PAN and Aadhaar.
    • Says that this clearly meets the test of proportionality.
    • Says that the Court should not second guess the legislature’s assessment of proportionality unless it’s shocking and needs no argument.
    • Says that in a clash between privacy and other fundamental rights, the Court should look at the larger public interest.
    • Is summing up the test of proportionality as laid out in the right to privacy judgment.
    • Says that as per the right to privacy judgment, prevention of crime and safeguarding revenue are legitimate aims of the State.
    • The test of proportionality is applied, examined and recorded in Binoy Viswam.
    • Reading out some judgments of the Supreme Court on proportionality.
    • His first judgment is PUCL v Union of India, which is on disclosure of assets by political candidates and their spouses.
      • Says that in this case, it was held that the right to privacy of the spouses of political candidates was outweighed by the public interest.
      • Reads out the part of the judgment that said disclosure served the right to information of the citizens, and that the right to privacy had to be subordinated to the right to information, because it served the larger public interest.
    • Reads another judgment, Narayan Dutt v. Rohit shekhar, on DNA testing to prove paternity.
      • Says that in this case, even an extremely invasive procedure was upheld by the Court, and the right to privacy was subordinated.
    • Quotes Subramanian Swamy case on the point of reasonable restrictions.
    • Now reads out the SC’s 2016 judgment upholding criminal defamation, which was authored by Chief Justice of India Dipak Misra.
      • Says that in this case the SC has held that the nature of social control has to be borne in mind when considering reasonableness.
      • Reads out the part of the judgment that talks about “qualified civil liberties.”
    • Says that it is the duty of the Court to strike a balance to preserve values. (still quoting from the criminal defamation judgment)
    • Says that the question is whether the legislature, while exercising its power of choice, has excessively infringed upon rights. In this case, that has in no way happened.
    • Quotes Justice Sikri’s judgment in the Modern Dental case.
    • Says that a law is proportionate if it has a legitimate purpose, has a rational connection with the goal, and is necessary. Says that all these conditions are fulfilled.
    • Generation of revenue, curbing black money and prevention of evasion of taxes is necessary and measures that need to be taken by the state for the same are proportional, he says.
    • It is necessary as has been shown from the facts. And there is a clear rational connection.
    • The right to move your fist stops when my nose begins!
    • The legislature decides this question. If the legislature stops me from moving my fist, that is disproportionate. But it is the legislature’s prerogative to decide whether it is 1 inch or 1 foot from your nose.
    • Reads out an American judgment about urine testing for drugs.
      • The fourth amendment does not safeguard all expectations of privacy, but only ones that are reasonable, he quotes from the judgement.
      • reading out excerpts from this case.
    • Comes to the European Convention of Human Rights.
      • Says that the European Court of Human Rights in James v United Kingdom, it was held that compulsory transfer of property could in some circumstances be upheld as promoting the public interest.
      • Says that ECHR has held that compulsory transfer of property in the public interest can be permissible if it is in the public interest.
  • Justice Sikri says that judgments dealing with property stand on a different footing. Is not relevant in this case.
  • Tushar Menta says that in that case, he will skip this and move on.
  • Justice Sikri says that nobody is disputing that.
  • Tushar Mehta says that some of the petitioners have tried to argue that the relevant standard is that of compelling state interest, but that is not required. Only a legitimate interest is enough.
  • Judges repeat that nobody is disputing this point.
  • Tushar Mehta says legitimate state interest is enough. No need to prove compelling state interest. Says the word ‘necessary’ is not synonymous with ‘indispensable’. It only has to be proved that it’s necessary for larger public interest.
    • Says if there’s an overwhelming public interest then there’s no need to apply the “least intrusive” test. Says that the test is not that the prohibition is least restrictive.
    • He says that the courts in the UK have accepted that the State doesn’t have to show that it’s infringement on rights is least restrictive.
    • Is reading out a judgment from the UK. He says that what is required is a balancing exercise to further public interest. It need not be least intrusive.
    • Says that a measure can be proportionate even if it is not the least intrusive infringement of rights.
    • Cites the UK judgment of Smith, which repeats that something can be proportionate without being the least intrusive infringement on rights. This was a case about compulsory acquisition of property.
    • Says that as long as the government has an acceptable view with regard to stopping tax evasion and protecting revenue, it doesn’t matter if the method adopted is not the least intrusive.
    • Says that his last argument is on linking of bank accounts to Aadhaar under the Prevention of Money Laundering Act.
    • Says that global money laundering as per UN is to the tune of 1 trillion dollars.
    • Says that money-laundering is a global menace, and India has reacted like other countries have reacted.
    • Reads out the Basel Committee Report, and says that the point is to ensure that the bank account is actually opened by the person in whose name is is.
  • Justice Sikri says that there is no dispute that money laundering is a problem. He asks Tushar Mehta to explain why Aadhaar is required for bank accounts and phones. How Aadhaar will prevent money laundering?
  • Tushar Mehta says that there many loopholes that can be plugged.
    • Now reading out the scheme of the PMLA rules. Says it’s not a toothless law anymore. The formation of rules flows from section 12(c) of the Act.
    • Cites section 73(j) . Says banks are mandated to verify identity of customers.
    • Says that the purpose of the rules is to effectuate this.
    • Showing a chart to the bench. He says that there are layers of shell companies, and it becomes impossible to find out who the real beneficiary is. Chart below…
  • Justice Sikri asks Tushar Mehta why he’s showing this.
  • Tushar Mehta says that it is to show the larger public interest.
    • Now quoting FEMA
  • Bench rises. Tushar Mehta will finish by lunch tomorrow. Then Rakesh Dwivedi will close the case for the State.