By Vidyut

A 5 judge Constitution bench began hearing the arguments to decide the constitutional validity of the Aadhaar project today, almost seven years since the first challenges to the Aadhaar project. The long standing case had been delayed when the Attorney General had argued in 2015 that the citizens have no fundamental right in India to privacy and the matter was finally resolved when the 9-judge Constitution Bench delivered a historic and unanimous judgement asserting that the right to privacy was indeed a fundamental right last November. Now, a five-judge Constitution Bench, comprising the CJI Dipak Misra and Justice DY Chandrachud, Justice AK Sikri, Justice AM Khanwilkar, and Justice Ashok Bhushan, begins hearings on the constitutional validity of the Aadhaar project.

Advocate Shyam Divan began with pointing out “No democratic society has adopted a programme that is similar in its command and sweep. There are few judicial precedents to guide us. The closest foreign cases have all been decided in favour of the citizen, repelling the invasive programme by the State.”

He went on state that the petitioners were challenging the biometric technology and the Aadhaar act based on materials that discredit the government claims and said that if the Aadhaar Act and programme were allowed ot operate unimpeded, they would “hollow out the Constitution, particularly the great rights and liberties it assures to citizens. A People’s Constitution will transform into a State Constitution.”

Advocate Divan raised the question whether the Constitution of India allows this “giant electronic mesh” and described the government’s employment of marketing strategems and “smoke and mirror” methods as far more insidiou than a frontal attack on the constitution. Describing the Aadhaar as “a little understood programme that seeks to tether every resident of India to an electronic leash” he called the implementation “A compulsory barter” that compels the citizen to volunatarily give up their biometrics and allow both biometric and demographic information to be stored by the State and private operators. “The Constitution of India is not a charter of servitude. Aadhaar, if allowed to roll out unimpeded reduces citizens to servitude.”

He also brought up the point that the result provided by matching biometrics was a probabilistic one and not a deterministic one. He explained that the process of matching the fingerprints compared several points in the fingerprint, called minutae, and compared them for similarity with the stored fingerprint. “They have a template. The template scales the fingerprints. They then pick up, say, hundred distinctive points, called minutae. The UIDAI then sets a number – how many of those hundred points should match?” he explained. “If the number is set at 100/100, it will never work. So UIDAI has to make a value judgment. It can’t be too high, it can’t be too low…. So you’re departing from a deterministic system from a probabilistic system.” And raised the issue “If I have certain rights, then how can my enjoyment of those rights be made probabilistic?”

He distinguished determinstic procedures and non-deterministic probabilistic procedures and how a biometric match algorith is inherently probabilistic, treating it as a deterministic one .is causing widespread exclusion all across the country where people are unable to access basic services. And how authentication failures report are unacceptably high.

He continued with a summary of key issues that arise in this case.

  1. Whether the Constitution of India sanctions the creation of a surveillance state and surveillance society where routine and regular every day transactions are recorded by the State;
  2. Whether the personal autonomy of Indians extends to biometrics such as finger prints and iris scans and consequently whether citizens of India can be required to use
    their bodies as markers wherever demanded;
  3. Whether the Rule of Law, a basic feature of the Indian Constitution mandates that where demographic and biometric information is collected from citizens at the instance of the State, the exercise is (i) backed by law, (ii) carried out by government alone having regard to the very sensitive and personal nature of the information, (iii) preceded by a meaningful process of securing informed consent. Whether the Aadhaar project conflicts with the Rule of Law and constitutionalism?
  4. Is the Aadhaar Act, 2016 a validly enacted law, having been passed as a Money Bill?
  5. Whether the right to privacy guaranteed under Part III of the Constitution, especially dimensions such as ‘the right to be let alone’ and ‘the right to be forgotten’, entitle a citizen to protect her personal identity, her movements, her social interactions, etc., without being forced to part with personal information to the State and without being forced to embed her information with government departments and private entities?
  6. Whether in a democracy, the citizen has a choice for establishing her identity. Correspondingly, whether the State is under an obligation to allow access to benefits, services, subsidies, etc. so long as the individual chooses to identify herself in some reasonable manner?
  7. Whether the coercive power of the State under the Aadhaar project can extend to children?
  8. Whether in a digital world the right to personal autonomy extends to informational self-determination? Whether an individual can protect herself by controlling the information she chooses to put out?
  9. Whether the vulnerability of the Aadhaar database compromises national security?

In this batch of cases the challenge is directed at the constitutional validity of:

  1. The Aadhaar programme that operated between 28.01.2009 until the bringing into force of the Aadhaar Act, 2016 on 12.07.2016;
  2. The Aadhaar Act, 2016 (and alternatively certain provisions of that Act);
  3. Elements of the Aadhaar project or programme that continue to operate though not within the cover of the Act.
  4. Specific Regulations framed under the Aadhaar Act, illustratively the Aadhaar (Authentication) Regulations, 2016.
  5. A set of subordinate legislation in the form of statutory rules/ regulations including the Money Laundering (Amendment) Rules, 2017;
  6. All notifications (nearly 139) issued under Section 7 of the Aadhaar Act (assuming the Act is upheld) in so far as they make Aadhaar mandatory for availing certain benefits/ services/ subsidies including PDS, MGNREGA and social security pension;
  7. Actions on the part of the authorities to make Aadhaar mandatory even where not covered by Section 7, inter alia,
    • Actions by CBSE, NEET, JEE.
    • UGC requirements for scholarship.
  8. Specifically, actions on part of the Union government mandating linking of mobile phones and Aadhaar vide DoT circular dated 23.03.2017.
  9. Section 139AA of the Income Tax Act in so far as it violates Article 21 by mandating linking Aadhaar to PAN and requiring Aadhaar linkage for filing returns.

Session 2

Advocate Shyam Divan took the court through the composition, function and responsibilities of the UIDAI and pointed out that before the Aadhaar Act, there was no mention of biometrics in the legal instruments that governed Aadhaar. The collection of biometrics was illegal and the Aadhaar Act does not cure that. Justice Sikri asked whether the result of the illegality would be that the database has to be destroyed. Advocate Divan said yes.

Advocate Divan described to the court how even the authentication could be used to profile citizens and the manner in which Aadhaar was being used.

He also stated that while at one point UIDAI projected that the purpose of Aadhaar was to give everyone an identity, responses to RTI queries revealed that the actual number of people for whom Aadhaar was the first ID, was very small. Justice Chandrachud asked why the State couldn’t say that biometrics were needed to prevent social welfare leakage. Advocate Divan replied that he would address that issue in detail, but mentioned that the outflow in terms of Aadhaar expenses is far more than savings and even if Aadhaar plugged leakage there was a question of whether it was a proportionate method of doing so. Advocate Divan then took the court through the old Aadhaar Bill and the Aadhaar Act and the Standing Committee’s report on the old bill.

CJI asked about the Money Bill aspect. P. Chidambaram and Advocate Arvind Datar explained the position of the petitioners.

The bench will resume hearing the case tomorrow at 11:30am.

*

A press note from Rethink Aadhaar

SC asks whether Aadhaar biometric data collected between 2009-2016 should be destroyed

After about seven years since the first challenges to the Aadhaar project, on Wednesday, a Constitution bench began hearing the arguments to decide the legal validity of the project.

Why the long wait

In 2015, while defending the Aadhaar project, the Attorney General had argued that citizens have no fundamental right to privacy in India. In November 2017, after a two-year-long wait, the 9-judge Constitution Bench delivered a historic judgement affirming the fundamental right to privacy enshrined in India’s Constitution. Two months on, a five-judge Constitution Bench, comprising the CJI Dipak Misra and Justice DY Chandrachud, Justice AK Sikri, Justice AM Khanwilkar, and Justice Ashok Bhushan, began hearings today to decide on the constitutional validity of the Aadhaar scheme.

What happened in the hearing

At the start of the hearing, the Attorney General asked that fixed time be allotted to each of the lawyers arguing on both sides. Senior advocate Shyam Divan said the entire project needs to be examined, and its notifications examined. The Chief Justice of India also agreed that time for arguments cannot be limited in this fashion in this matter.

Divan began proceedings for the petitioners by recounting the history of the project. His opening statement can be found here.

Briefly, the salient points in the opening statements include:

  1. No democratic society has adopted a programme that is similar in its command and sweep.
  2. The government seeks to tether every resident of India to an electronic leash.
  3. At its core, Aadhaar alters the relationship between the citizen and the State and diminishes the status of the citizen.
  4. The State is empowered with a ‘switch’ by which it can cause the civil death of an individual.

When Mr. Divan described the illegality of biometric data collection prior to the promulgation of the Aadhaar Act in 2016, Justice Sikri interjected to ask whether Mr. Divan was saying the data collected from 2009-2016 would have to be destroyed. Chief Justice Mishra too questioned whether data collected in infringement of a fundamental right should be destroyed. Mr. Divan stated that it would.

It is also crucial to remember that in 2015, when petitioners had pointed to long delays in the case hearings even as government was rushing and coercing enrolment, Justice Chelameswar had explicitly stated that the court could not allow the government to present a fait accompli.

Another important interjection was made on the question of the passage of the Aadhaar Act as a Money Bill, bypassing one house of parliament where the government lacked a majority.

On the CJI quoting his earlier judgment on not discussing the Money Bill issue, Senior Advocates P. Chidambaram and Arvind Datar pointed out the contradiction to two previous Constitution Bench judgments. The current bench will thus also have to decide on the validity of the Aadhaar Act’s passage as a Money Bill.

Further, Mr. Divan pointed out that the 2016 Act was identical to the 2010 National Identity NIDAI Bill which had been rejected by a Parliamentary Standing Committee on Finance in 2011. Mr. Divan submitted that the 2016 Bill had not been examined by any such committee, making its being passed as a Money Bill questionable

Aadhaar false claims obvious

Even as the Supreme Court began hearing arguments today, the spate of news stories bringing to light technological issues with Aadhaar continue, with the latest being Go News’s follow up on the Kanpur Fake Aadhaar racket, revealing that the UIDAI is clueless about how many fake Aadhaar enrolments were generated and how to tell apart fake authentications from genuine ones. Given that the hackers were able to bypass biometric authentication – both fingerprint and iris scans were compromised – this is another telling commentary on the vulnerability of the Aadhaar ecosystem, begging the question if UIDAI is indeed competent enough to maintain such a vast program whose mishandling puts the life of every single Indian at risk for all time.

Meanwhile, another petition has been admitted wherein 50 private companies have pleaded that Aadhaar should not be struck down as it would cause losses to their businesses. Considering that Aadhaar claims to make delivery of welfare benefits more efficacious (the title of the 2016 Aadhaar Act itself reflects this), and was passed as a Money Bill on same basis bypassing the Rajya Sabha, it is a shocking attempt now to frame the project as a for-profit enterprise.

The hearings are likely to continue for another 4 to 6 weeks. Shyam Divan will continue arguments for petitioners tomorrow.

The outcome of this hearing will impact similar coercive biometric UID programs across the world.