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 6: 01 Feb ’18
Shyam Divan, Senior Advocate and counsel for petitioners arguing.
- Bench assembles. Shyam Divan to continue with his arguments.
- Submits note w.r.t. Client IP and device IP.
- Explains the meaning and significance of IP Address. Shows how an IP device can be used to know the approx. location.
- Now explains about the device ID- devices registered with UIDAI. Reads out points which refer to end-to-end traceability requirement in these devices.
- Justice Chandrachud says that there are multiple interfaces between individual and State such as tax, electricity bills etc. Suppose instead of Aadhaar you are required to use a PAN card. How would that be different?
- Says that your argument seems to be a problem with centralisation. Is it the centralisation that what makes it unconstitutional? Because every time I use a device with an IP, say to book an Uber, my location can be tracked…
- Shyam Divan says … “by Uber.
- Chandrachud J says what is the specific additional problem with Aadhaar?
- Shyam Divan says the first problem as you have correctly pointed out is centralisation. Normally, you have information silos.
- Justice Chandrachud: But they are all tracking your location, that is a common denominator.
- Shyam Divan: This is where the ECHR judgment in Digital Rights judgment comes in. They said “you cannot maintain logs.” Why? Because it is one thing if a particular utility provider knows about your location. But what happens with centralisation is you have complete tracking.
- In the present regime that allows tracking of IP + ID.
- Look at the situation 25 years from now. If we fail in this case, 25 years from now we will be addressing “Aadhaar judges.” Because there is a full log. Right now – schools and scholarships. They are planning for ++ airports as well.
- At this point you have multiple IDs. Take the PAN card example. You give one ID, you are identified, you avail your benefit. There is satisfaction with respect to the authority, and there’s no question of surveillance.
- Goes back to the Kerala example from the day before, where the “X” in question was unable to prove that she was alive because she could not authenticate herself for three years, before there was a social media storm.
- Says that we have a situation where your own body can be used to exclude you. This argument will be developed by other counsel.
- Says I want to stress that I’m not saying that somebody is sitting behind the screen and watching. It’s about the architecture of the program and this is why it’s never been under proper scrutiny.
- Says that no other free liberal society in the world has tried this because it simple wouldn’t pass muster.
- Justice Chandrachud says what if someone else like a bank offered to make all your transactions for you and you set standing instructions, like for insurance payments, bill payments, car installments etc. What is the qualitative difference? My bank maintains a central repository of all my transactions. We’re constantly entering into a world of surrendering our identity – it may be a choice but it’s still a central database. If we’re willing to surrender our identity, then does the fact that the State is collecting information make a difference?
- Says would it be satisfactory if there were norms governing collection and use?
- Shyam Divan says that this is not a question of checks and balances, because the architecture is that of pervasive surveillance.
- Says that he’s alive to the concern that you cannot go back to the pre-digital age, and that is not what he’s suggesting.
- Goes back to the point about limited government, reading out the KT Plantations judgment. Rule of law as an implied limitation on government power.
- Reads out Justice Subba Rao’s dissent in Kharak Singh.
- Says that a lot of questions have come this morning about paying electricity bills, phone bills etc. He says that suppose before making any of these transactions, I just had to phone a government official and inform him that I was doing this.
- Reads out the part of Kesavananda Bharati judgment that says that the social and economic revolution has to be achieved consistent with respect for civil and political rights.
- Says that could the Preamble conceive of a State where I am standing there in flesh and blood, with alternative ways of identifying myself, but can be denied my entitlements?
- Justice Chandrachud says that on the issue of exclusion, let’s focus on one scheme and see how it’s been working.
- Kapil Sibal stands up and says that there is a Planning Commission Report from 2005 that lists ten factors of exclusion and Aadhaar solves just one of them.
- Says that this act is premised on the principle of “one nation one identity.”
- Shyam Divan goes back to the privacy judgment on the concept of limited government.
- Reads out the Chief Justice’s elaboration of democracy in Manoj Narula v Union of India.
- Quotes a speech by President Kovind which talks about how trust between State and citizen is at the heart of the constitutional governance.
- Says that Aadhaar is premised on the assumption that we are a nation of knaves. This represents a complete breakdown of trust, because the presumption is that if you don’t have Aadhaar, then you’re a crook.
- Reads out HM Seervai on the concept of limiting legislative power to secure fundamental rights.
- Says that his next point is that of rule of law. The notification of 2009 constituting UIDAI did not mention biometrics or fingerprints.
- The statutory norm for collecting demographic data was the census Act. UIDAI did not follow this.
- The ID of Prisoners Act, the Bombay Habitual Offenders Act etc established the statutory norms for collection of fingerprints. UIDAI violated all these norms.
- UIDAI ignored norms laid down by the Supreme Court since 1975, which articulated the fundamental right to privacy, and which was unanimously affirmed in the privacy judgment. All these judgments said that you must have a law if you want to infringe on privacy.
- UIDAI ignored the 2011 Standing Committee’s recommendations, and pressed ahead in order to create a fait accompli
- UIDAI took no responsibility for the safety of the data. UIDAI created an aura of necessity and used enrolled whose quality was dubious.
- UIDAI actively funded the SRDHs, so that datasets proliferated, without statutory backing.
- UIDAI violated multiple SC orders saying that Aadhaar must be voluntary.
- Sums up the arguments on limited government and rule of law.
- Says that an individual is entitled to develop her personality without being tracked and registered.
- Says that in a liberal democracy, routine everyday transactions cannot be made conditional on a barter of your biometric information.
- Says that Seervai began his submissions in Kesavananda Bharati by saying two things: that democracy depends on faith in people and in peoples’ decisions.
- Bench rises for lunch.
- Attorney General says that in the new budget there is a 41% increase in the tax base most of which is due to Aadhaar.
- Some informal discussion between Shyam Divan, Kapil Sibal and the bench on the fiscal structure.
- Justice Chandrachud says that increasing the tax base is important. Back to Aadhaar.
- Shyam Divan says he has four more points to make.
- He says that an element of limited government is that it is a shared enterprise between the people and the government.
- Says that another element of limited government is autonomy and the idea of space – the idea that I can do something without the State necessarily knowing.
- Says that a final element of limited government is the idea of giving citizens a choice in establishing an identity. … in both interactions with the State and with private parties.
- Says that the State has advanced two justifications – giving people an identity, and savings.
- Says that both these claims are undermined by the State’s own documents.
- Says that the Aadhaar enrolment system requires a pre-existing identity, and if you don’t have it, then an Introducer is required.
- According to government statistics, the number of people who used the Introducer system is 0.03% (a little over 2 lakhs).
- This doesn’t mean that I win my case, but it’s important to have the facts on record.
- Consequently, the question is that can such small numbers justify such a vast an invasive system. We are not saying that identity is not important for the small number who didn’t have it, but the point is whether it is justified to resort to Aadhaar.
- Justice Bhushan says that numbers will not make a difference either way.
- Shyam Divan says that we are only pointing out that one of the State’s core justifications for this project is not borne out by the facts.
- Says that the second justification is welfare and savings.
- Says that there are different type of malpractices. The first is that you fake your data and claim to be eligible when you’re not. Second, quantity fraud. Third, identity fraud.
- Says that Aadhaar can at best only deal with the third type of fraud.
- Says that the World Bank has estimated a saving of 11 billion dollars per annum. Union has relied on this.
- Union of India has said that the World Bank is independent and will not indulge in puffery.
- Says that in another affidavit the Union of India has used the same figure of 11 billion dollars.
- Says that recently Paul Romer resigned from the World Bank citing no integrity in the data. This is one excellent example. There is some dispute over what exactly the pleadings were with respect to the issue of puffery.
- The Chief Justice says that Shyam Divan’s argument is that you can’t have policies even to advance Directive Principles if they end up excluding people.
- Shyam Divan reads out Kalyani Menon Sen’s affidavit on the issue of exclusion. He says that the State’s claims are based on the enrolment percentages, which amount to puffery, because enrolment has been not limited to citizens, and there has been no oversight.
- Talks about the World Bank claim. The claim footnoted a 2011 article which made no such claims. That article used the 11 billion figure to talk about transfers from five schemes, and talked only about the value of the transfers.
- Therefore the World Bank claim stands discredited. The figure was the total disbursement. There was no mention of savings. After this was revealed, the World Bank replaces the citation with its own footnote.
- Says that maybe the World Bank didn’t know, but the government official who signed the affidavit surely should have known that this figure is wrong.
- Says that the next point is that of MGNREGA. The Union has claimed DBT benefits and Aadhaar savings as 11741 crores.
- Says that UIDAI records show that the 74 lakhs NREGA job cards were seeded with Aadhaar, out of which out 67000 were found to be bogus. These were all in Tripura.
- A Lok Sabha question was asked, where the figure given was 63000.
- Aadhaar therefore eliminated 63000. The maximum savings this would yield is 127 crores. This is less than 5% of the claimed saving of 3000 crores.
- In an RTI questions were asked about the scale of savings and the method.
- No specific methodology was provided. It was just said that savings are in terms of efficiency and reducing delay. Nothing about fraud.
- In another year 93000 job cards were canceled, but many far reasons other than them being fake. In an RTI reply it was found that the number of cards canceled for being fake were 1%
- Chief Justice of India says that Shyam Divan’s point is that the margin of exclusion is high and the margin of inclusion is low.
- Says that Shyam Divan’s argument is that the larger public interest cannot be invoked to justify the extinction of individualism.
- Shyam Divan agrees.
- Chief Justice of India says that there is a pending judgment on whether a court can look at parliamentary proceedings. That judgment will come out in ten or twelve or days.
- Shyam Divan comes to LPG subsidies. He talks about the concerns expressed by the CAG.
- The LPG linking began as a pilot in 2014. The figures given in UIDAI affidavit is 14000 crores of savings.
- However, cabinet secretariat minutes show an annual subsidy saving of 91 crores. Compare 14000 with 91.
- What happened was that long before Aadhaar, the NIC came up with a scheme to weed out duplicates. The savings occurred long before Aadhaar.
- The CAG report is specifically with respect to the implementation of the LPG linking scheme, and the CAG has specifically said that you cannot attribute the savings to the Aadhaar linking, because the savings come from the NIC’s earlier program to weed out duplicates.
- In fact, the CAG specifically said that part of the savings is because of people not linking Aadhaar. This actually points to exclusion.
- So what really is the scale of the savings then?
- Says that his last argument will be about the body.
- Reads out an affidavit by a fieldworker on the Jharkhand NREGA program. The affidavit recounts starvation deaths that occurred in Jharkhand because of Aadhaar linking failures. The affidavit recounts the testimonies of family members who said that individuals gradually starved to death because they were dependent on their grain entitlement, which in turn was linked to Aadhaar. The affidavit recounts villagers” testimony about ration dealers tampering with the Aadhaar grain records to hide leakages. The affidavit recounts testimony about pension not being credited because Aadhaar was linked to more than one account, and the pension was sent elsewhere. The bank manager said that it was a technical glitch.
- Bench rises.
- There was a confrontation between Justice Chandrachud and Shyam Divan earlier when Justice Chandrachud says that it seemed that if they didn’t hold with the Petitioners, they would be treated as ideologically committed.
- Justice Chandrachud said that they were not Aadhaar judges and nor were they NGO activist lawyers.
- When the bench rose, Shyam Divan apologised if his tone had conveyed that impression.
- To resume on Tuesday. Shyam Divan will conclude and the case will be taken forward by other counsel for the petitioners.
