- Jan: Day 1 (17/1/18)| Day 2 (18/01/18) | Day 3 (23/01/18) | Day 4 (24/1/18) | Day 5 (30/1/18)
- Feb: Day 6 (1/2/18) | Day 7 (6/2/18) | Day 8 (7/2/18) | Day 9 (8/2/18) | Day 10 (13/2/18) | Day 11 (20/2/18) | Day 12 (21/2/18) | Day 13 (22/2/18)
- Mar: Day 14 (6/3/18) | Day 15 (7/3/18) | Day 16 (13/3/18) | Day 17 (14/3/18) | Day 18 (15/3/18) | Day 19 (20/3/18) | Day 20 (21/3/18) | Day 21 (22/3/18) | Day 22 (27/3/18)
- Apr: Day 23 (3/4/18)
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 24: 04 April ’18
Attorney General K.K Venugopal arguing for the state.
- Hearing begins.
- Attorney General resumes his arguments from yesterday.
- Reiterates that we live in a digital era and Aadhaar is the best way to prevent money laundering and deliver subsidies and benefits.
- Says that a lot of govt. funds has gone into this project.
- Aadhaar will last for a long time in the future. It has been approved by UN and world bank.
- Aadhaar is an ongoing process and the technology and security will be updated as and when required.
- Says that policy decisions of the government approved by experts are not subject to judicial review. Gives example of Unified Access Service License. Says three organs of the State should have mutual respect for each other in a democracy.
- Development will slow down if there’s judicial review of every administrative action. Courts should not interfere in matters of technical expertise. The only duty of the court is to expound the language of the act. They cannot decide if a particular policy decision is fair.
- Justice Sikri: The petitioners are arguing on the basis of proportionality. You say there’s minimal invasion of privacy. Petitioners are challenging that argument.
- Attorney General says that the State has a legitimate state interest in rolling out Aadhaar. Aadhaar is in line with the Puttaswamy judgement.
- Justice Bhushan: We are not concerned with policy decision. We are looking at the Act and regulations.
- Attorney General reiterates that courts cannot question the wisdom of experts.
- Says there’s no question of privacy involved in this case.
- The entire challenge is whether Aadhaar is safe and secure, which we have already proved it is, he remarks.
- Explaining the sixteen digit virtual ID. Says it is an excellent safety measure.
- Justice Chandrachud: Is the onus on the individual to generate a virtual ID?
- Attorney General says it’s on the individual.
- Justice Chandrachud questions whether twenty crores people can do it.
- Attorney General says it’s an additional measure.
- Justice Chandrachud says that maybe this measure should be applicable to every Aadhaar number without the individual having to generate it.
- Says perhaps Aadhaar passes the test of legitimate state interest, but proportionality is in question.
- Attorney General says that it stands the test of proportionality because all alternative measures we’re considered before adopting Aadhaar.
- Repeats that the court should not become an approval authority. It is the duty of the State to look after the welfare of the people in a democracy.
- Justice Chandrachud: “Biological attributes” is open ended.
- Attorney General says that blood, urine, DNA can be added, but it’ll be subject to examination by the courts, just like right now the court is examining whether collection of fingerprints and Iris scans are a violation of privacy.
- Cites Section 55 and says that the parliament will be an oversight body.
- Justice Chandrachud says that the power of UIDAI to decide what is ‘biological attributes” and the method of collecting it has to meet the test of proportionality.
- The regulations don’t need the approval of the parliament under section 55. The parliament can only disapprove of it. But the initial power to frame regulations lies with UIDAI which might be a case of excessive delegation.
- Attorney General says that he’ll answer this point later.
- AG hands over and reading out India’s statement at the 20th session of UN commission on science and technology for development on the theme: New innovation approaches to support the implementation of sustainable development goals.
- Mentions Pradhan Mantri Gramin Digital Saksharta Abhiyan for spreading digital literacy in rural areas.
- Bench has risen for lunch.
- Session 2. Attorney General to continue.
- Attorney General is reading an American judgment that deals with the issue of the taking of fingerprints in the context of verifying a prior criminal record. The fingerprinting ordinance in that case was upheld because it was adjudged to be a minor inconvenience, minimally intrusive, and not a “fundamental decision”, such as the choice of contraception.
- Justice Chandrachud points out that the issue is not fingerprinting per se, but narrow tailoring. He recalls that petitioners have taken examples of Identification of Prisoners Act and Bombay Habitual Offenders Act, which are examples of narrow tailoring.
- Says that the petitioners’ objection is not to fingerprinting per se, but to the pervasive nature of Aadhaar.
- Attorney General says that the purpose is prevention of fraud by having a universal ID. Therefore it satisfied a vital state interest.
- Says that the purposes are specific – preventing subsidy loss, preventing income tax fraud, and preventing terrorism.
- Justice Chandrachud asks if S 7 is sustained, the question still remains whether Aadhaar can be expanded to include use by private parties.
- Attorney General says he will address it later.
- Now reads out a case from New York, also dealing with fingerprinting, and said that fingerprinting does not carry any stigma or presumption of criminality. This case said that fingerprints can be used for non-criminal proposes, as a valuable and reliable means of identification. There is no stigma and no unwarranted invasion of liberty.
- Repeats the point that the inconvenience is minor, and the violation of dignity is non-existent. The case also said that even if there are alternative means, that choice is to be made by the legislature, and not by the courts. And if the means adopted are reasonable, the legislative choice cannot be called into question.
- Says that the allegation that this could be used for surveillance is baseless, because no government in the last seventy years has engaged in surveillance, apart from the Emergency.
- Says that the Court can’t go into legislative motive, or go behind the stated objective of the Act.
- Now reading a US SC judgment – Whalen v Roe. Whalen was a case involving retention and storage of data about pharmaceutical drugs.
- The US SC held that there was no constitutional violation, and the possibility of misuse was not a ground to invalidate the patient identification mechanism. The Court in Whalen did not decide what would happen if there was an unauthorised disclosure.
- Says that this shows that the mere possibility that a large quantity of data may be misused is no ground.
- Justice Sikri says that the position in European law is diametrically opposite.
- Attorney General says that American SC is 250 years old and has often been followed by the Indian courts.
- Some lighthearted discussion between Justice Sikri and Attorney General on whether foreign judgments should be looked at all.
- Attorney General is still reading paragraphs from Whalen v Roe, that talk about balancing interests.
- Cites Whalen v Roe judgment about social security numbers, which says that collection of personal data like sexual orientation etc can cause stigma, but the kind of data collected by the SSN does not, and serves a legitimate government interest.
- Justice Chandrachud has pointed out the distinction between the American Social Security number and Aadhaar. He says that SSN is more like a PAN card. SSN does not involve biometrics and there’s no authentication requirement.
- Attorney General responds that the American SSN collects vastly more information than Aadhaar.
- Justice Chandrachud says that his recollection from his student days is that the SSN only has your name and a number.
- Attorney General confers with his junior and says that this is true. But in any case, the Aadhaar Act says that personal data cannot be disclosed.
- Now reading out a New York Supreme Court judgment on a fingerprint identification program (Buchanan v Wing)
- Now reads an American judgment called People v Stuller. This involved fingerprinting in a rape case.
- Chief Justice of India says that this case is not relevant because nobody is saying that you can’t take fingerprints in a criminal investigation.
- Attorney General now discusses the case of Brown v Brannon, which was about the ‘massage of private parts for hire.’
- Reading out an American SC judgment that says the government can impose non-discriminatory conditions for the receipt of benefits.
- Reads out the part of the judgment that says that a wide latitude should be given to the State when implementing welfare programs. The case also dealt with the use of Social Security numbers to eliminate fraud and duplicates.
- Bench rises. To continue tomorrow.
