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, Day 12.

Senior Advocate Gopal Subramanium resumed his arguments. He referred to article 243G(b) of Constitution and said that some level of implementation is clear in the provision. He said that Puttaswamy judgment talks about identifying eligible recipients, but the present act does not identify eligible recipients, instead, it provides proof of identity.

Mr. Subramanium argued that without criminality or any offence being committed, people cannot be asked to give their biometrics. He said that biometric authentication was considered only in the case of commission of crime. He pointed out the Selvi & Ors vs State of Karnataka & Anr case which deemed the taking of fingerprints as an invasion.

Mr. Subramanium moving to Indian case laws, pointed to NERPAP programme of Election Commission. Where P stands for “Purification” of electoral rolls – by liking it with Aadhaar. He said that a 3 Judge Bench of the same court had issued a note, post which the programme was suspended.

Justice Chandrachud asked about an interpretation of Section 7 of the Aadhaar Act. Mr. Subramanium talked about how the sections matter little with the project. He gave the example of the surreptitious way in which Union did telephone linking – purportedly under an SC order dismissing a PIL and without pointing out existing interim orders.

Referring again to “purification”, Mr. Subramanium read out excerpts from Edwin Black’s IBM and the Holocaust.

Mr. Subramanium submitted that Aadhaar bank linking is for preventing money laundering but NPCI is making the database available to private parties. He said that anyone can get a profile of an individual from the State Resident Data Hubs and that there is no limitation on what info can be stored in SRDH. He referred to the information presented on the SRDHs, and the affidavit filed by Khosla Labs and other private organizations and private entities profiteering out of Profiling based on Aadhaar data.

Sernior Advocate Rakesh Dwivedi, appearing for State of Gujarat said that SRDH data has now been destroyed! He said that SDRH were established under MoU under the UPA regime and that after the Aadhaar Act was enacted, the data was destroyed.

Mr. Subramanium read the Digital Lenders Association and Khosla Labs affidavit. He emphasized that their intervention application wants the Aadhaar project because Aadhaar getting struck down will affect their business interests. He read out the intervention application in which the applicants say that their business models required Aadhaar to function.

Justice Chandrachud asked for credible documents to show to what extent the private parties had access to the database and asked whether the private parties gain access to the biometric information. As Section 57 of the Act does not provide provision for the same.

Mr. Subramanium said that the authentication agents are not govt. agents. They’re private players. He said that the that Aadhaar bridge is an invitation to business which would be done through this agent.

Justice Chandrachud pointed out that Section 57 only allows authentication by the private parties. Then how do they get access to the data.

Justice Khanwilkar and Justice Chandrachud asked Mr. Subramanium to show the same from petitioners and Govt pleadings.

Mr. Subramanium said that due to seeding of Aadhaar with multiple databases, the entity can gain access to the profile of the individuals.He brought up the point of convergence.

Justice Chandrachud said that he understands the convergence point and data being used by pvt players for purposes other than governmental interests. However, he said this is a factual point and he wants to see if there are cogent pleadings. Mr. Subramanium said that he will show them from the petitions.

Justice Chandrachud took up the example of employment background verification being enabled by this platform and the problems with it.

There was a discussion between Chief Justice of India and Justices Sikri, Khanwilkar and Chandrachud.

Another discussion ensued between Mr. Subramanium and the Chief Justice of India with regards to the origins of the phrase यतो धर्मस्ततो जयः (yato dharmastato jayah – where there is dharma, there is victory), which is the motto of the Supreme Court of India.

Mr. Subramanium referred to how justice is the essence of all virtue and a purely technical decision on a complex question of identity without human application of mind and without recourse to justice is grotesquely unjust.

Mr. Subramanium next referred to the definitions in the Aadhaar Act – ‘Aadhaar number holder’, ‘biometric information’, ‘core biometric information’. Justice Chandrachud asked what ‘biological attribute’ was. Could DNA be a biological attribute? Mr. Subramanium replied in the affirmative. Justice Chandrachud that the definition then is open-ended.

Mr. Subramanium said that there is a Bill in the offing to bank DNA as well. (Justice Chandrachud dropped his head in apparent dismay.)

Mr. Subramanium proceeded to read out Section 31 and observed that Section 31 (2) was never complied with atleast till the Aadhaar Act came into force. He sarcastically commented that there is a grievance redress under the Act which is a call centre with the number as 1947 (implying freedom, in a grotesque parody, as India became independent in the year 1947)

Mr. Subramanium then referred to the enrollment regulations that put burden of updating the information in CIDR is on the individuals. Justice Chandrachud said that the government can’t be expected to keep a track of all the changes. Mr. Subramanium responded that demographic information is one thing, but how can an individual know that she’s due for biometric updation? Even an updation requires biometric authentication. If biometric has changed, what does one do?

Justice Sikri agreed, saying that when authentication fails there is a presumption that you are not the person who you are claiming to be. Mr. Subramanium responded that that is the crux of the problem. A presumption unreasonably derived.

Justice Khanwilkar said that in case of an authentication failure, the person can go for updation. Mr. Subramanium pointed out that an authentication failure is viewed as the person being a “ghost” (fake identity).

Mr. Subramanium next moved to Section 31 on alteration of demographic or biometric information. He pointed out that in case the biometric info is lost or changes subsequently, the individual will have to request UIDAI to make alterations in his records.

Mr. Subramanium now moved to Section 5 and how it contemplates aadhaar for children despite India being party to CRC. Senior Advocate Arvind Datar related how even LKG admission requires aadhaar. Justice Chandrachud agreed and described the narration from the Supreme Court driver of his ordeal. Mr. Datar says it is also required for Tirupati Darshan. Justices Sikri  and Chandrachud had wry smiles.

(Bench rose for lunch)

Session 2

Mr. Subramanium went through enrollment regulations 16, 17, 18, 19. He said that the words of regulation 28, which deals with the security of the info, are in the nature of assurance and not emphatic. He said that regulations 27 to 29 are very poor safeguards. He said that in the event of an authentication failure, there’s an assumption that the biometrics were captured validly at the time of enrollment and now the person is trying to duplicate.

Mr. Subramanium pointed out cases in which Aadhaar shall be deactivated. He stated that there is no procedural or substantive reasonableness being followed by the authority. He said that the architecture of this Act is completely deleterious to human dignity.

Reading section 33 on disclosure of information in certain cases pursuant to court order, Mr. Subramanium pointed out that the individual will not be given the opportunity of a hearing. Instead, the authority will be given the opportunity.

Going back to Section 7, Mr. Subramanium stressed the wordings used- require, undergo, furnish proof- they impose a condition. He questioned whether mobile phones, banks, income tax get covered under this section. He said that it has gained creeping coverage, but the section 7 doesn’t actually prescribe that there must be real recipient of the benefits.

Mr. Subramanium said that Section 4(3) proves the Act is for universal coverage and thus, is ultra vires of Constitution.

Mr. Subramanium summarized his points. In case authentication fails, the entitlements may be annulled, resulting in permanent disablement. Due to technology, the possibilities of profiling are very strong.

Mr. Subramanium handed over the compendium and reads on big data and metadata and remarked that liberty cannot be measured in coffee-spoons. He read out about the nature of big data’s analytics tools and it’s unpredictability. Algorithms are unpredictable in nature, as UIDAI is not the algorithm writer. What guarantees do we have then?

With big data, we can get the details of the individuals, especially if combined with other data sets. It can even give geographical data of the individuals, Mr. Subramanium argued. He said that in the absence of a data protection law, the injury or vulnerability is heightened. No assurance can lessen that. He stressed that the data retention should also follow reasonable and substantive reasonableness. It cannot be for all the people. That’s very broad.

Mr. Subramanium said that there’s an uncertainty associated with biometric systems. They’re probabilistic in nature. There is a risk of error. Biometrics are untrusted systems. He referred to the Wilson affidavit. He talked about babies being enrolled into Aadhaar. He said we shouldn’t ever go down that way.

Mr Subramanium handed over a module on exclusions due to Aadhaar. Says that in Jharkhand, exclusion is as high as 49%. He read a letter of a CSC, an agency during the enrollments, with which MoU was ended due to corruption and non-observace of procedure. He further referred to several affidavits from excluded people.

Referring to the L1 contracts, Mr. Subramanium said it is very clear that

  1. the foreign entity has total control over the algorithm.
  2. data is with L1 even though UIDAI may have ownership.
  3. It can subject it to such use, analysis as may be required.

Mr. Subramanium referred to the interim orders of the Supreme Court. He said that everyone including the government is bound by the orders of the Court. However, after 2016 Act, the government did not obey those orders. There has been a continuous violation. Petitioners have also brought them to the notice of the Court continuously. Now, he said, in 2018 we have starvation deaths. He said that the Court must grant exemplary damages and compensation to those who lost lives or were otherwise excluded.

Mr. Subramanium argued that fundamental freedoms can only be protected by the Courts. A lot of ground has been covered by the judgments. He requested the Court to extend the deadlines as had been mentioned in its order dated 15th December, 2017 since the matter is still pending.

Mr. Subramanium concluded his arguments.

The Court rose for the day. Senior Advocate Arvind Datar will commence his arguments covering 7 basic points in the next hearing. The Chief Justice recommended that he submit a note on points to be covered and then elaborate on those 6th March onwards.

The next hearing will resume on Tuesday, 6th March, 2018.

Summary of hearing based on tweets by Prasanna S and SFLC