Senior Advocate Shyam Divan continued presenting the case of the petitioners with a clarification on a previous point on the Registered Device Id and IP and the surveillance implications of recording both with every authentication transaction. He handed over a note and a screenshot of his own phone as an illustration of his arguments.
Justice Sikri remarked that he was aware of these possibilities.
Shyam Divan stressed that the registered device was the reason for the traceability and said that this (recording of registered devices and IPs used for authenticating transactions) established the enabling of surveillance and asserted that the Court had no alternative to striking down the project if it was found to be making surveillance possible, citing the Jones and Zaccharov cases in support of his statement.
Justice Chandrachud compared this example of traceability with various interfaces between the individual and the state such as paying tax, electricity bulls, etc. He asked what the difference would be if an individual were asked to provide a PAN instead of Aadhaar and remarked that Mr. Divan’s argument appeared to object to centralization.
Justice Chandrachud asked whether centralization made Aadhaar unconstitutional, since every time he used a device with an IP – say to book an Uber, his phone could be tracked. Mr. Divan interjected “by Uber“, to which Justice Chandrachud asked what the specific additional problem was with Aadhaar (meaning tracking on the basis of IP was not unique to Aadhaar).
Mr. Divan agreed that the problem indeed was with centralization, where normally there would be information silos, to which Justice Chandrachud remarked “But they are all tracking your location, that is a common denominator.”
Mr. Divan said that this was where the ECHR judgment brought nuance in ruling that maintaining logs (of personally identifiable information) could not be allowed. The difference was between a particular utility having an isolated piece of information – your location and centralization creating complete tracking.
He projected that if the present regime of tracking IP and ID persisted, in another 25 years, they would be addressing “Aadhaar-ed” judges whose entire profile from cradle to bench would be available to the government, because there would be a complete log of their information beginning from schools and scholarships and said that they were planning for airports as well. He described that today you had multiple IDs that could prove yourself to an authority in order to avail your benefits. This satisfied the question of identification for the authority as well as prevented surveillance as information was not attributable to a single ID.
He referred to the example from the previous day of the subject “X” – she had been unable to prove that she was alive, because she couldn’t authenticate herself for three years till her story generated outrage on social media. He said that this was a situation where your own body could be used to exclude you.
Mr. Divan stressed that he wasn’t implying that the system was currently being used for surveillance, but that surveillance was inherent to the architecture of the program, which was why the project was never scrutinized. He said that no other free and liberal society had even attempted it, because wouldn’t stand to scrutiny.
Justice Chandrachud said that we are constantly having to surrender our identity and gave the example of a bank that did transactions as per standing instructions and had a record of all transactions. He recognized the element of choice, but remarked that it was still a central database and asked that if we were willing to surrender our identity in such cases, whether it made a difference that it was the state collecting the information. He aksed if it would be satisfactory to have norms governing collection and use of data.
To this, Mr. Divan replied that it was not a question of checks and balances but one of pervasive surveillance. He assured the Court that he was aware of the concern that one could not go back to the pre-digital age and said that this was not what he as suggesting.
Going back to the point on limited government, Mr. Divan read from the KT Plantations & Another vs State of Karnataka judgment that described rule of law as an implied limitation on government power, Justice Subba Rao’s dissent in the Kharak Singh case and 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.
Mr Divan asked if the Preamble (to the Constitution of India) conceive of a state where a person could be denied their entitlements in spite of having alternative ways to identify themselves.
Justice Chandrachud brought up the issue of exclusion and suggested a focus on one scheme and see how it’s been working. Kapil Sibal stated that there is a Planning Commission Report from 2005 that lists ten factors of exclusion and Aadhaar solves just one of them. He said that the Act is premised on the principle of “one nation one identity.”
Mr. Divan resumed his arguments about the concept of limited government, quoting the privacy judgment, Chief Justice’s elaboration of democracy in Manoj Narula v Union of India and a speech by President Kovind which talks about how trust between State and citizen is at the heart of the constitutional governance. Mr. Divan said 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.
Mr. Divan quoted HM Seervai on the concept of limiting legislative power to secure fundamental rights.
On the rule of law, Mr. Divan summarized his key arguments:
- He pointed out that 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.
- 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 enrollment agents 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.
Mr. Divan again affirmed that an individual is entitled to develop her personality without being tracked and registered and that in a liberal democracy, routine everyday transactions cannot be made conditional on a barter of your biometric information. He concluded the point saying that Seervai began his submissions in Kesavananda Bharati case by saying that democracy depends on faith in people and in peoples’ decisions.
(Justice Chandrachud was angry as he misunderstood Mr. Divan’s comment from session 1 as a labeling of him as an “Aadhaar judge”. He said that he may as well be true to constitutional conscience. Mr. Divan apologised.)
Mr. Divan described aspects of limited government as “a shared enterprise between the people and the government”, “autonomy and the idea of space” – that it wasn’t necessary for the state to know everthing a person did, and the idea of giving citizens a choice in establishing an identity in interactions with the State as well as private parties.
The State had justified themselves with two claims – that of giving people an identity, and savings – both of which are undermined by the State’s own documents. Pointing out that the Aadhaar enrolment requires a pre-existing identity or an introducer, Mr Divan provided government statistics that those who used the introducer system were 0.03% of all enrolments, contradicting the claim of necessity of providing an identity. He questioned whether such a small percentage could justify such a vast and invasive system. Without denying the importance of identity for the small number who didn’t have one, he challenged the necessity of Aadhaar as the solution for everyone.
Justice Bhushan said that numbers would not matter either way, to which Mr. Divan said that they were merely pointing out that the State’s core justifications for the project were not substantiated by facts.
Mr. Divan addressed the State’s second justification – that of savings. He provided three examples of malpractices – false claims of eligibility, quantity fraud and identity fraud and said that in the best case scenario, Aadhaar could only address the third kind of fraud. He brought up the often cited claim of the World Bank attributing savings of 11 billion dollars per annum to Aadhaar – the State has quoted this as well as used it in another affidavit and claimed that the World Bank is independent and will not indulge in puffery.
Referring to Paul Romer’s resignation from the World Bank citing no integrity in the data, Mr. Divan said that this was one excellent example. (A minor disagreement ensured over what exactly the pleadings were with respect to the issue of puffery.)
The Chief Justice said Shyam Divan’s argument was that you can’t have policies even to advance Directive Principles if they end up excluding people.
Mr. Divan quoted Kalyani Menon Sen’s affidavit on the issue of exclusion. Stating that the State’s claims are based on the enrolment percentages, he said they amount to puffery, because enrolment has been not limited to citizens, and there has been no oversight.
Returning to the World Bank claim, he said that 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. Not savings at all. (This is like saying that all subsidy transfers being cancelled would save the government money)
Thus, Mr. Divan showed that the World Bank claim stands discredited. The figure was the total disbursement. There was no mention of savings. The World Bank replaces the citation with its own footnote when this was pointed out. Mr. Divan excused the World Bank for not knowing, but remarked that the government official who signed the affidavit should have known that the figure was wrong.
Addressing the claims of savings from MGNREGA. The Union has claimed DBT benefits and Aadhaar savings as 11741 crores. According to the UIDAI records, 74 lakhs NREGA job cards were seeded with Aadhaar, out of which out 67000 were found to be bogus in Tripura (63,000 was the figure provided in the Lok Sabha in reply to a question asked) Mr. Divan said that if Aadhaar eliminated 63000, the maximum savings from this would be 127 crores (less than 5% of the claimed saving of 3000 crores)
Mr. Divan referred to RTIs that asked about the scale of savings and the method and stated that 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 for many reasons other than them being fake. A reply to an RTI query stated that the number of cards canceled for being fake were 1%
Chief Justice stopped Mr Divan saying that they understood his point and rephrased it saying that it was that the margin of exclusion is high and the margin of inclusion is low and that Shyam Divan’s argument is that the larger public interest cannot be invoked to justify the extinction of individualism. He suggested that Mr. Divan rephrase his proposition that way
Mr. Divan agreed.
Chief Justice said 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.
Mr. Divan proceeded to the issue of LPG subsidies and 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.
Mr. Divan explained that the NIC had been weeding out duplicate LPG connections before Aadhaar was implemented and the savings had thus 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.
Mr. Divan brought up the question of what the real scale of savings was, given all this.
Continuing the point of exclusion, Mr. Divan then read out an affidavit by a fieldworker on the Jharkhand NREGA program that 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.
Mr. Divan will conclude his arguments on Tuesday, February 6, 2018 and the case will be taken forward by other counsel for the petitioners.