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, Day 13Day 14Day 15Day 16., Day 17 and Day 18.

Senior Advocate Meenakshi Arora continued her submissions on behalf of Vickram Crishna and others.

She handed over a written submission while continuing with the Szabo (ECHR) case and the German Federal Court, which ruled that long periods of data retention violated privacy rights. She argued that there’s no purpose limitation in case of Aadhaar.

Ms. Arora argued that indiscriminate collection and retention of data is akin to a general warrant, issued without probable cause or suspicion and the same is impermissible without an emergent situation shown by state.

She read the Tele2 decision on data retention, where telecom metadata retention even for six months was struck down whereas in Aadhaar all transaction meta data retained for seven years! She elaborated on the chilling effect that is caused by a general and indiscriminate retention of personal and personal transactional data.

Ms. Arora read out excerpts from the UN General Assembly Resolution on Right to Privacy in Digital Age, showing power of metadata. She summarized by saying that mass collection of data and aggregation can have a chilling effect on fundamental rights like freedom of speech and expression.

Ms. Arora said that in the affidavit filed by the Union of India on 9 March, it admits that aggregation of data can lead to surveillance, but insists that this cannot happen in a state with rule of law. She said that our history should warn us to be careful about this claim. She says that the protection we are seeking is not for the here and now, but for generations to come.

Ms. Arora referred to an expert report of Respondents which says that surveillance using data in CIDR is possible.

Ms. Arora’s next submission was that collection, aggregation and retention of data has no specific purpose, and therefore violates the principles of purpose limitation and proportionality. She argued that the collection, aggregation and retention of personal data on a mass scale under the Aadhaar project is grossly disproportionate and therefore violates the right to privacy. It does not have a defined purpose and consequently does not meet the test of proportionality and strict necessity. She said that there can’t be unfettered executive discretion simply by invoking national security.

Ms. Arora read from Szabo ECHR case: However, in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.

Ms. Arora read the report of the United Nations High Commissioner for Human Rights on The Right to Privacy in the Digital Age of 2014: it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate.

Ms. Arora referred to Tele2 case wherein the Court held that even for the purpose of prevention of serious organized crimes like terrorism, the law, which allowed for retention of data, failed to meet the test of proportionality. She read further relevant excerpts from the case.

Ms. Arora argued that there was no specific purpose for Aadhaar. She referred to the 139 notifications and various other notifications capturing 360 degrees of every individual’s life. She referred to Section 7, Section 57 and several other provisions that seem to equivocate on the purpose of Aadhaar. She traced how the government went from encouraging people to get an Aadhaar and allowing alternative forms of identification, to mandating it.

Ms. Arora said that the proviso to Section 7 should be read down. When it says “if an Aadhaar number is not assigned”, it should be interpreted to mean that those without an Aadhaar should be allowed to use other identification. Justice Sikri J and Chief Justice of India disagreed with this interpretation. Some discussion followed.

Ms. Arora said that the Regulation 12 of the Enrolment and Update regulations is ultravires Section 7. She argues Section 7 essentially does not make it mandatory but provides for alternatives.

Ms. Arora read out the Supreme Court’s Canara Bank judgment with respect to unbridled power being given to authority, “The possibility of any wild exercise of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out.” She said that lack of foreseeability and apprehension of abuse justifies intervention by the court in present case.

Ms. Arora then argued on lack of safeguards. She said that Aadhaar Act contains no provisions for data protection, apart from a mere obligation on the Authority to ensure security of the information which again is vague and doesn’t lay down any data security standard or prescribe measures in case of data leak. She said that at the very least there should be periodic deletion of data.

Ms. Arora hurried through her arguments on Risk of abuse and Chilling effect (the petitioners had only till the afternoon to conclude their submissions and more lawyers were to follow). She said that in Aadhaar project, there are no judicial safeguards or effect remedies in case of breach – there is no scope for judicial review under the architecture of the Aadhaar Act.

Ms. Arora read through her note on Jeremy Bentham’s panopticon and the alteration of behaviour that it induces. She made the point of mere assymetry of information altering the power equation thereby causing a chilling effect.

Ms. Arora cited Michel Foucault to say that an asymmetry of knowledge leads to an asymmetry of power and again submitted that Aadhaar has a chilling effect on exercise of fundamental rights.

Ms. Arora referred to Jeremy Bentham’s idea of ideal security institution – Panopticon for reforming inmates. She said the stated purpose of such schemes is always to reform people – but it’s impact is that of suppression. “Aadhaar is a pancopticon that reduces all of us from being citizens to being mere subjects!”

Ms. Arora read a passage from Fali Nariman’s about the emergency that described how the situation was – the emergency having been a panopticon. She submitted that Aadhaar infringes the right to dignity of the individual as it amounts to requiring a licence for exercising fundamental rights. She said that the State is not allowed to make the exercise of fundamental rights subject to a license, which is probabilistic. This deprives individuals of control over their identity, and violates dignity.

Ms. Arora rushed through her submissions on dignity and how Aadhaar becomes a license raj for Fundamental rights! She said that Aadhaar treats citizens as subjects, and should be struck down. Making Aadhaar sole means of identification is neither wise nor fair as primary objective of government schemes is to ensure that beneficiaries get the services instead of being excluded.

Ms. Arora closed her arguments by reading through her notes on Aadhaar violating Child Rights and reiterates Aadhaar being unconstitutional as it fundamentally alters the relationship between state and citizen and reduces the citizen to being mere subjects.

Senior Advocate Sajan Poovayya’s submissions on behalf of Justice Byra Reddy

Mr. Poovayya pointed to the German census case.

Mr. Poovayya argued that the law hitherto dealt only with men and matter. Information tech is a totally different beast. While a legislation may pass the test of proportionality and least intrusion in the brick and mortar world, it may not in the world of technology – and specially information technology. It may satisfy the tests of restrictions, however, looking from the lens of technology, the same legislation may prove to be intrusive.

Mr. Poovayya said that there may be a compelling state interest in Aadhaar – to identify people accurately, but that must be achieved in the least intrusive fashion. Aadhaar does not achieve that. The compelling State interest of Aadhaar is precise identity so that imposters are not wrongfully benefitted, but least restrive option has to be explored. He adopts the position of petitioners that mass collection of biometrics is bad in law. It must be achieved using least intrusive methods. Assuming biometric technology is not bad, then least intrusive method is using a card with a chip which stores the biometrics. Even if we were to use biometrics, a smart card or a chip card with biometrics stored locally is clearly a lesser intrusive alternative. No possibility of aggregation. No violation of informational self determination.

Mr. Poovayya said that when you go to get your ration, the authentication will be from your fingerprint then, to your fingerprint stored on the chip. He says that this is a less intrusive way of achieving the same goal, because you don’t need a central database. He said that this allows people to control their own data, and this is the core of the right to informational self-determination. In a democratic society, an individual must have the right to decide how much info she wants to submit.

Mr. Poovayya that in fact, this will be more accurate, because you aren’t matching with a database of 1.3 billion people. So there is less chance of exclusion. He said that in case of a chip being used, the chances of biometric failure is also reduced.(Medianama: Where the biometrics are stored will not alter exclusion related problems with them not matching due to ageing and other factors)

Mr. Poovayya said that even if we accept that biometric info is necessary, then what all biometric info must be made mandatory? He submitted that definition of biometric info is open-ended. He said that it’s not just Section 57 that makes the Aadhaar Act bad. What makes it bad is that the definition of biometric is open-ended, and the government can add to it through regulations.

Mr. Poovayya asserted that this is not about possibility of misuse, but possibility of use. The definition allows for vastly expanded use, which can subsequently include DNA and even plasma. Can collection of DNA for giving someone 2kg of rice be a least intrusive alternative, he asked. He asked whether later, if DNA helix were made mandatory then whether keeping DNA helix in a centralised database is a least intrusive method.

Mr. Poovayya read about the German census case from 1983. What might be least intrusive today may become more intrusive tomorrow. He described how despite it being in an era where data processing was much slower, with computational power being limited, the German Court had the foresight to strike it down. He said that the dangers in this era are more real and profound. The German Court said that proportionality requires clarity about the purpose, use and linking of data. Collection of non-anonymized for unspecified or unspecifiable purposes is bad in law.

Mr. Poovayya said that Aadhaar doesn’t stand on the same footing as Census data where statistical data of all the citizens is taken which also has a lot of protection. Asks why should Aadhaar data be given less protection then when it contains more sensitive data?

Mr. Poovayya said that a citizen does not know and has no control over what happens to the Aadhaar data. He said that Aadhaar reduces an individual to an object of information.

Mr. Poovayya concluded with the following:

  • distinction between giving localised, multiple-interfaced biometric information to, e.g., the phone, and the centralised database in Aadhaar.
  • GDPR principles to show how Court will have to look at the question of least intrusive alternative keeping in mind that there is no domestic data protection regime that has strict enforceability.
  • private entities give you much more control over your information, and at best they can use it for commercial purposes, and if there’s a violation, I can sue them.
  • we don’t have a data protection legislation in India. In case of phones or Google servers which have multiple interfaces, possibility of collation of data is not there since GDPR stops them from doing so.
  • the core problem with Aadhaar is centralisation instead of localisation of data as in the case of phones which causes problems.
  • biometric per se is not bad but when used in connection with technology, it becomes bad.
  • biometrics for border control stands on a different footing

(Bench rose for lunch, Resumed at 2:30pm)

Senior Advocate P V Surendranath commenced his arguments on behalf of Kisan Sabha

Mr. Surendranath argued that if it is shown that the Aadhaar Act is arbitrary and violates Article 14 and due process, it is unconstitutional, and no actual violation need be shown. He said that the Aadhaar Act should pass both the tests of arbitrariness and rationality under Article 14 to be valid.

Mr. Surendranath cited two articles. Justice Sikri said that we have come to a stage where there is so much information about Aadhaar on both sides. How do we sift through and decide?

Mr. Surendranath says that the core point is that you are deprived of control in the decision-making process – that is, at the time of authentication. He said Aadhaar Act is irrational and violative of Article 14. It just cannot work.

Mr. Surendranath discussed an article by the name “Tale of errors” by R. Ramakumar in 2012 about the inaccurate nature of biometrics. He discussed the Brandon Mayfield fingerprints incident cited in it from Spain where the FBI had to apologize to him because his fingerprints had been a wrongly matched (he was identified and arrested as a terrorist as a result).

Mr. Surendranath said that countries all over the world are moving away from fingerprint-based identification.

Justice Sikri asked if they can rely on it as the Union of India would show many incidents to the contrary. Mr. Surendranath replied saying it is the duty of the Court to examine both opinions and conclude.
PVS: Refers to two articles. Also gives example of a case of false match of biometrics.

Mr. Surendranath then referred to the Hans Mathew study which said at any point the minimum FPR of deduplication will be 1 in 121. He pointed out that in India’s population, this is a huge number and this alone is enough that renders the project irrational.

Mr. Surendranath added another feature of the project that aggravates the irrationality: No opt-out

Senior Advocate CU Singh began his arguments on behalf of Joshita Pai, Beghar Foundation and Nagarik Chetana Manch

Mr. Singh that one crucial issue is that of the rights of children. He read out the Convention on the Rights of Child, to which India has acceded. He referred to the Article in CRC that guarantees privacy of the child. The right of the child to privacy is protected in the Convention and in Indian laws. He submitted that India has acceded to the Convention on Rights of the Child and enacted Juvenile Justice Act and POCSA.

Mr. Singh reminded that the principle of “fresh start” under the JJ Act that requires deletion of records. He said that the legislations ensure the privacy of the child. He took the court through the provisions of the Act wherein there is a provision on info related to the delinquent child to be deleted.

Mr. Surendranath said that under law, a child has no right to give consent or to enter into a contract. A child in India, under law, has no power or right to bind herself to anything, to consent or enter into contracts. In this background, there is no compelling state interest to mandate Aadhaar and Aadhaar linkages with all sorts of things amounts to asking for an unconstitutional waiver of rights.

Mr. Surendranath pointed out the absurdity of taking heel prints for infants! He referred again to Article 21A of the constitution of India and how Aadhaar makes Article 21A, an absolute constitutional right subject to a legislation subordinate to the Constitution! He said that this is not permissible. He further said that a child cannot be deemed to have given consent under Aadhaar. Especially so, when it involves parting with data permanently.

Mr. Singh said that the fundamental right of the child to education cannot be made subject to production of Aadhaar. He said that the Puttaswamy judgment specifically recognised the rights of the child.

Mr. Singh handed over written submissions that set out the major issues raised by Dr. Anupam Saraph and the Nagrik Chetana Petition that the Court must decide. He read out his note highlighting major points in the case.

Mr. Singh made it clear Aadhaar case deals with personal data jurisprudence. The whole Aadhaar Act is created upon the architecture that personal data is some national resource. Court has to establish clearly here that citizens don’t squat on their own personal data! Data is NOT the new oil, he asserted. He said that personal data belongs to individual and not the State. It cannot be nationalised.

Mr. Singh pointed out that Aadhaar has been made compulsory for EPFs. This has been done without statutory backing, and is therefore illegal.

Mr. Singh’s last point was about the right of the homeless, who because of a lack of a fixed abode, are suffering specific problems that must be addressed.

Senior Advocate Sanjay Hegde, representing a conscientious objector, John Abraham

Mr. Hegde was representing a conscientious objector, John Abraham who challenges Aadhaar as a violation of Article 25 of the Indian Constitution that describes Freedom of Conscience and Freedom of Religion.

John Abraham (not the actor) is a Mumbai-based father whose son was denied college admission to Class 12 because he did not have Aadhaar and did not want Aadhaar on Biblical religious reasons. Mr. Hegde from the “Book of Revelations”. Aadhaar, he argued, is the number of the “Beast”. (Many christians in Meghalaya also resisted Aadhaar enrolment on this ground). He said that Aadhaar is that mark/number of the Beast.

Justice Sikri asked Mr. Hegde to provide constitutional basis for the arguments. Mr. Hegde responded saying he is substantiating his argument under Article 25. His Petitioner simply contends that he cannot in good faith enrol for Aadhaar and that there has to be an exception for conscientious objectors.

Mr. Hegde said that the individual conscience of the petitioner leads in good faith to the conclusion that he cannot apply for Aadhaar number. Thus, there should be an exception for him. Mr Hegde said that there are religious objectors whose freedom of conscience must be respected.

Mr. Hegde explained that Article 25 contains two distinct rights: the freedom of conscience and the freedom of religion. Unfortunately, we stress on only the latter aspect. He pointed out the distinction between freedom of conscience and freedom of religion. He said that question of conscientious objective was well known to the makers of constitution.

Justice Sikri remarked that it is an interesting argument and that they would consider it.

Mr. Hegde then moved to his next argument on proportionality. He skipped all his other submissions for lack of time) but wanted to read a passage from Vivian Bose J in Krishnan v State of Madras.

Mr. Hegde concluded by saying it is his earnest hope that the Court will decide in the favour of the freedom of citizens.

Senior Advocate Jayna Kothari on behalf of an intervenor organization for transgender persons and sexual minorities

Ms. Kothari argued that with respect to transgenders, demographic information becomes a major issue. She said that the Aadhaar Act discriminates against sexual minorities. Discussing Section 2(k), she said that while the biometrics aspect has been argued at length, the demographic data collected under the Aadhaar Act and its implications too are a matter of concern. Aadhaar Regulation 4 of 2016 requires demographic information. The form has third gender, but there is no uniformity across the board, and you have to produce other documents to get an Aadhaar, some of which may not have had that option.

Aadhaar is being made mandatory for almost everything but transgenders cannot get an Aadhaar because they do not have the gender identity documents that Aadhaar requires. Ms. Kothari argued that non-recognition leads to denial of benefits. Caste, religion is left out but not gender. It’s a violation of privacy and equality. Loose use of gender identity in Aadhaar is both discriminatory as well as a violation of privacy.

She cited Ople V Torres, Philippines Decision that struck down the administrative order providing for biometric identification system, when a similar system was implemented in Philippines but was scrapped later by the Supreme court.

She also pointed that the decision of the Supreme Court of the Philippines that struck down a national ID system.

Senior Advocate Prasanth Sugathan on behalf of NRI petitioner.

Mr. Sugathan wanted to make a brief point about NRIs. The way Aadhaar is implemented, the authorities are not sensitive (cannot be sensitive) to the fact that NRIs are not eligible to get an Aadhaar number. His petitioner for instance had to give someone else’s Aadhaar to get a phone connection. There is no rule of law qua NRIs.

Mr. Sugathan said that it’s difficult for an NRI to file taxes due to them not being eligible to get an Aadhaar. He said that the procedure is cumbersome. He requested the Court for directions. He raised the issue of Non Resident Indians facing difficulties in availing various services and them being discriminated against for not being eligible for Aadhaar. He was permitted to file written submissions.

Senior Advocate N S Nappinai made brief submissions:

She said that Aadhaar makes India’s cyberspace vulnerable and threatens national security. She asserted that the latter is also a fundamental right. She argued that digital ghettoisation, not merely profiling, is made possible by the Aadhaar Act.

Petitioners’ arguments concluded. The State would commence arguments from the next hearing.

Court rose for the day. Advocate General will begin submissions on behalf of the government on, 21st March 2018.

Summary of hearing based on tweets by Prasanna S  Gautam Bhatia and SFLC