This is a record of the proceedings in the Supreme Court bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the previous days’ proceedings here: Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9, Day 10, Day 11.

Senior Advocate Gopal Subramaniam continued with his arguments on behalf of the petitioners.

Mr. Subramanium began by pointing out the constitutional value of human dignity as detailed in the Jeeja Ghosh & Anr vs Union of India & Ors judgment on human dignity and linked it to the Puttaswamy (privacy) judgment by the 9 judge bench. He said that to live is to live with dignity.

Reputation is a part of dignity

Mr. Subramanium referred to the judgment in the case of Subramanian Swamy vs Union of India, Ministry of Law & Ors which talks about the concept of reputation as a natural right – a facet of dignity. He pointed out the connection between fairness and justice which lead to dignity. He emphasised the need for proportionality. He said he could understand if it is a question of an offence of impersonation and there is a procedure followed. But a whole population cannot be subjected to a process assuming the entire population are impersonators. This Indian culture respects the inherent divinity of every person (in response to a question by Chief Justice of India following Mr. Subramanium giving a Sanskrit verse to show justice and dignity are inextricably connected).

Mr. Subramanium asked if the present Act is fair and just. He stated that lack of authentication has led to deprivation which has led to debt. He said that it is an accountable State architecture. The insignia is some kind of probity and rectitude which should be assured. He asked whether this Act is amenable to law. Whether it embodies a culture of accountability. He pointed to how Centre washes its hands when referred to starvation deaths often pointing fingers at state government or the ration officer!

Mr. Subramanium, in response to a question by Justice Chandrachud, said that he’s taking a doctrinal position. He said that he agreed that people should have a political identity. However, there are two expressions- ‘identity’ & ‘identification’ and it is the former which has constitutional relevance.

Difference between identity and identification

Justice Chandrachud asked the difference between identity and identification – whether identification under the Act impairs the right to identity.

Mr. Subramanium responded that minimal, regulatory identification is fine, but identification for availing rights is not. He referred to the nature of our society – the differences, the special vulnerabilities, etc. and how a homogeneous mechanism of identification with no alternatives is per se a violation of dignity. He said that the State has a duty to be citizen-friendly.

Mr. Subramanium, pointing out the problem, said that the Aadhaar Act has an element of objectification. It depersonalises an individual. It eliminates any form of transaction except through the medium of this Act. If a person can exist independent of Aadhaar, and if the Act does not accommodate that possibility, then it must go!

Mr. Subramanium said that unique identity cannot be given by a number. Identity is as natural as the life itself.

European judgments

Mr. Subramanium clarified for Justice Chandrachud’s the question from some weeks earlier on the extent of applicability of the European judgments, because the UDHR and ICCPR have been read as part of domestic law and therefore there is no reason to hold them as not applicable. FRs keep expanding and progressing…this Court cannot hold a retrogression on them.

Dignity and the State

Mr. Subramanium resumed the subject of dignity and how the very act of seeking identification for things such as birth, death or scholarships is a pejorative and attribution of indignity. He said that the State is obliged under Article 13 in the Constitution of India to respect the rights of the individuals.

Mr. Subramanium angrily said the state is making a moral judgment on the poorest of the poor in saying they make ghost cards. He pleaded if there is pilferage, the State should identify them and take action and not treat every person with indignity. He referred to how for all the astronomical leakage figures, nothing is pleaded as to action taken against those responsible!

Mr. Subramanium said that State cannot use this present mechanism to find out the ghost people. State needs to have a better mechanism which makes it accountable and follows due procedure.

Mr. Subramanium asserted that opacity is antagonistic to rationality. The law must be able to rationalize its objectives. Socio-economic rights are complementary to political rights. The latter is not subservient to the former.

“The Aadhaar Act lacks both substantive and procedural reasonableness”, said Mr. Subramanium

Mr. Subramanium continued reading Puttaswamy (Para 224) on reasonableness of laws and again referred to the Aadhaar architecture. “Probababilistic. Uncertain. Absolutely not normative. This can never be rational or a reasonable method of identification.” He said the onus of identification is on the state under our Constitution.

Mr. Subramanium referred to the role of dignity in the theories on self-actualisation by eminent psychologists Abraham Maslow and Viktor Frankl, and how it is part of the understanding of dignity under the Indian Constitution. He recalled the German case on microcensus that argued that the possibility of aggregation per se is a violation of the right of personality – right of self-actualisation.

Mr. Subramanium referred to how governments can come and go and said that we do not know who will inherit this database even if we don’t put any malice to the current government. This law will remain. He urged the judges to keep that in mind.

Mr. Subramanium complimented Attorney General of India, KK Venugopal on his longevity and the longevity of his excellence and how governments may not be able to emulate that. Mr. Venugopal smiled and said it was wholly unnecessary. Chief Justice of India commented on the necessity of getting rid of ego (unclear).

Informational privacy

Justice Chandrachud asks Mr. Subramanium to read para 299 and asked about reasonable expectation of privacy.

Mr. Subramanium proceeded to read the paragraph from Justice Chandrachud from the Puttaswamy judgment on restrictions to the right to privacy which includes legitimate State aim and proportionality – prevention of dissipation of social benefits as a legitimate state purpose. He argued that “Legitimate” by its very definition is bounded and that when the aim is effusive or is unbounded, as is the case with Aadhaar, it has no legitimacy of purpose.

Afternoon Session

Mr. Subramanium read excerpts from the Puttaswamy judgment about informational privacy. He said that the statute itself gives evidence that there is an aggregation of data including the metadata. He referred again to Puttaswamy judgment regarding potentiality of danger because of State and non-State data surveillance. He said in this Act, we need no guesswork – ubiquitous data surveillance is the intent and object of the Act and the regulations.

Justice Chandrachud asked him to read para 309 of the judgment which talks about monitoring web for national security. Mr. Subramanium replied that it is different. It talks about monitoring of web not aggregation. He asked the judges to consider that in case of aggregation of data, if somebody hacks into the database, what will become of the individuals.

Justice Chandrachud pointed to his judgment and paras on Posner writings on privacy being a terrorist’s friend. Mr. Subramanium submitted that it was very different and the situation in Aadhaar has no application. “We are not dealing with terrorists but the entire population.”

Mr. Subramanium referred to contracts with L1 and the exploitation of data by private players such as Digital Lenders association, Ongrid or TrustID – aggregation and profiling data for all sorts of purposes that have no nexus with the stated object of the act.

Mr. Subramanium proceeded to test the Aadhaar Act against Articles 14, 19 and 21 in the Constitution of India. He said that abridgement by law either for purpose of Article 19 or 21 is only law in praesenti (in the present) – it cannot be a retroactive law such as Section 59. He read section 59 and submitted that the expression ‘by law’ means law in present time and not retrospection.

Justice Chandrachud pointed out the problems with giving retrospective validity to the actions. Mr. Subramanium agreed. Mr. Subramanium said that if there’s an invasion of fundamental rights, what is without the authority of law cannot be deemed to have been done under the authority of law.

Justice Chandrachud made a fine distinction: A mere absence of law is curable, but a breach that has already occurred cannot be deemed have not occurred. Mr. Subramanium said there is another point. What lacked authority at the time cannot be retroactively conferred authority.

Mr. Subramanium referred to the Article 73 proviso. He said the entries related to the Aadhaar programme are in concurrent list 20, 23 and 24. Therefore, Mr. Subramanium said, the Union had no authority to operate an executive scheme. He also referred to 243G and Part IX and items under Panchayat.

Justice Chandrachud remarked that identification may possibly relate to Entry 97 – Residuary powers.

Mr. Subramanium now referred to proviso to Article 73(1) of the Constitution. He enlisted the entries in the concurrent list concerning Aadhaar and said that the interface of accountability takes place at the lowest level, state and then the Union level. He said Aadhaar violates the federal nature.

There was further discussion between Justice Chandrachud and Mr. Subramanium on whether a Fundamental Rights invasion can be cured by Section 59 of the Act.

Mr. Subramanium said that to examine section 59, two points will have to be considered: absence of law and invasion of rights. He said that a law cannot subsequently cure the invasion of rights.

Both Justice Sikri and Justice Chandrachud said that a mere absence of law can be cured by a retroactive law without showing a further injury. Mr. Subramanium said invasion in this case was complete once you unlawfully collected information and more – all those cannot be cured. He said that de-facto and de-jure invasion has taken place here. It is complete. And in such a case, a law cannot retrospectively cure such actions.

An interesting exchange transpired between the Bench and Mr. Subramanium on point of law with regard to Section 59. Justice Chandrachud asked in context of section 57 that whether, prior to 2016, the State governments also utilised Aadhaar. Mr. Subramanium told the Court that State governments entered into MoUs to establish State Resident Data Hubs.

Mr. Subramanium asked why the beneficiaries of schemes should beg the State to get their entitlements.

Mr. Subramanium said that heart and soul of this Act is authentication. If authentication fails, consequence is disablement. In such a case, there’s no form of substantive or procedural redressal. He said that this Act doesn’t even provide for retrieval of core biometric information. To compensate it gives provision of update. “But how will an individual come to know that his biometrics need updation,” he asked.

The Bench rose for the day. Hearings to resume on Feb 22, 2018

Summary of hearing based on tweets by Prasanna S and SFLC