This is a record of the proceedings in the Supreme Court 5 judge bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the entire series here. The previous’s day coverage in this series is here.

Senior Advocate Shyam Divan continued his submissions. He refreshed the Court’s memory on Prof. Manindra Agrawal’s report and the conclusions he drew from that for the Court. He continued to read out the UIDAI’S answers to the questions posed by the petitioners.

Divan talked about how inorganic seeding is happening under Aadhaar. He said that banks and telecoms were linking Aadhaar numbers of individuals with their bank accounts and mobile numbers without their permission. It’s called inorganic seeding.

Divan described the UIDAI’s responses on surveillance and tracking location and activity and failure rates as evasive. “Their idea of candour is perhaps different from ours,” he said. He pointed out that the security at the AUA and KUA level is compromised, no matter how secure the CIDR is. He said that if there are nine failures and one success, UIDAI treats it as 100% success. On a follow up question, the CEO declined to answer.

Divan then talked about the pre-Aadhaar Act regime. He said that UIDAI collected the biometrics of a 100 crore people without statutory or other written authority. This is the size of the entire population of Europe and North America. He argued that in a republic like ours, basic rule of law demands that there has to be written authority for all exercise of power. “We are not living under a monarch, where you can do these things with a gesture.”

Divan said that there was no valid contractual relationship between the UIDAI and the agents. He said that the UIDAI has admitted that it does no verification at the stage of enrolment and takes no responsibility for the same. He said UIDAI only matches. It takes no responsibility for actual identification.

Divan said that UIDAI has admitted that the AUAs can store biometrics. And this was found by auditors, who had to force them to remove it. He said “Think of it this way. From the citizen’s perspective there are two towers. An enrollment Tower and an authentication Tower. In this ecology system created by the statute, location, date/time and purpose are all known. This is 100% surveillance.”

Divan said From the citizens perspective, there’s authentication tower and enrollment tower. IP address, ID, date, time and purpose of authentication can be known because of the architecture of Aadhaar.

Divan said The discretion to actually use exception mechanisms if authentication fails is with the distributor. So the government is putting the citizen at the mercy of that person on the ground.

Divan said that the source code of the Aadhaar software belongs to foreign companies. It is impossible to live in contemporary India without Aadhaar.

Divan said that over time as Aadhaar authenticating becomes ubiquitous, tracking and profiling will become more comprehensive. He argued that contrary to what Senior Advocate Rakesh Dwivedi submitted, authentication is not just one time, but a continuous process. He had prepared an illustrative chart containing a hypothetical log showing an individual’s authentication log over three days. He hand over a programmatically randomly generated fictitious authentication history when different one-time, annual, monthly, weekly and daily activities are linked for authentication and the kind of information collected.

In response to a question from Justice Bhushan, Divan clarified that this log is hypothetical and the purpose is to show how much data is collected. He explained that the log was entirely based on existing activities linked to Aadhaar.

He then read a long list of AUAs and KUA agencies that are using Aadhaar authentication services and explained that it is not a limited list as indicated by the Respondents at all. He said the list is on the UIDAI website.

Divan then came to the ID4A, the World Bank report that was cited by the AG. He said that if you look at page 3, para 2 which said that the WB has partnered with Accenture to write this report. Therefore the report is not impartial. He handed overa press release from Accenture from 2010 to the Court. It said that Accenture has been selected to facilitate the UIDAI’s work. The High Level Committee for the report includes Nilekani, who was the chairperson of UIDAI. He emphasised that it cannot an impartial report that ought to be given any weightage by the Court and more importantly does not have anyone in their committee learned on civil liberties or human rights. (Questioning their credentials in making claims on SDG etc.)

Divan then addressed Section  59 of the Aadhaar Act, which attempts to validate all actions before the Aadhaar Act was passed. He said thateven if the notification was a parliamentary statute, unless it specifically mentioned biometrics, collection would be illegal. The notification made no mention of biometrics. So biometric collection before the Act was passed can’t be validated. He said that the collection of biometrics was ultra vires the 2009 notification. Assuming the notification was an act of parliament, even then it would’ve been ultra vires for collecting something as intrusive as biometrics.

Also, Divan pointed out, there was no informed consent and penalties that time. He said that, as a departure, even these days, there is no real counseling. He takes the example of having had to get his daughter an Aadhaar because CBSE was insistent on it. “I was prudent enough not to file a writ for this.”

Divan said that the West Ramnad and Hari singh cases that the AG and Advocate Dwivedi cited have no application in this case given there was no prior law.

Justice Chandrachud asked what be the consequences would be for data collected prior to the 2016 Act if Senior Advocate Divan were right. Divan said that if this submission is accepted, all enrolments prior to the Act will have to go because of need to assert the rule of law. Court orders were flouted. Parliamentary authority violated by the Government in this case. Most people had been coerced into enrolment. The population of more than Europe and NA combined.

Divan then addressed Section 7. He said there are 144 notifications that cover 252 schemes. He said

  1. Schemes that apply to children should be excluded.
  2. Exclude schemes that are based on competitions etc.
  3. Exclude schemes that have to do with rehabilitation or stigma like bonded labour
  4. Matters of food and health should be excluded. Justice Chandrachud asked here what principle should be evolved. Divan talks about the affidavit filed by Reetika Khera on the issue of exclusion.

Justice Chandrachud asked whether there is any principled interpetation of words like subsidies, benefits and services that would prevent its mindless expansion.

Divan gave the example of a lawyer who was in a coma, and the bank threatened to cut off her pension.

Justice Chandrachud agreed that vulnerabilities and not being able to biometrically authenticate is a real and present problem and an answer has to be found for Section 7 and that it has to be addressed.

Divan said that human rights law has a principle of non-retrogression. He pointed out how additional secretaries and advisors have signed notifications violating orders of the Court. He made a point about how its a retrogression of rights when you make statutory rights conditional.

The Bench rose for lunch and reassembled at 2:30 pm

Senior Advocate Shyam Divan continued his rejoinder. He handed over a compilation of notification lists under various classes under Section 7. 1. Dealing with Children – mid day meal, sarva siksha abhiyan. 2. Dealing with health – TB , abortion services. 3. Stigma is involved.

Divan said Sarva shiksha Abhiyan and mid day meal schemes requires children to furnish Aadhaar to avail benefits of these schemes. This should be completely excluded from section 7. There should be no conditions placed on children to avail these benefits.

Divan said that Aadhaar was even required to participate in essay competition. This is way beyond any reasonable limit of proportionality.

Divan said that the third category is schemes for rehabilitation that involve stigma, such as bonded labour and trafficking victims. Divan said that highly vulnerable groups should not be mandated to provide Aadhaar. He mentioned the Ujjwala scheme for women rescued from trafficking wherein Aadhaar is required.

Justice Sikri said that under the garb of distributing these schemes, it should not be the case that undeserving or fraudulent people get benefits.

Divan said that there must be a reasonable alternative way of identification that is allowed to an individual. He said that about health-based schemes, that even tuberculosis patients were mandated to disclose Aadhaar numbers. He described a scheme called the Jiyo Parsi Scheme to increase the number of Parsis, and even for that they have made Aadhaar mandatory.

Justice Sikri asked about diversion of funds and if Divan has any solution. Divan suggested any reasonable means of identification should do for all Section 7 schemes.

Divan summed up requesting the Bench to not consider Section 7 in isolation, but the overall impact of the Act. He said that Aadhaar as a whole is increasing the coercive power of the State against the individual. Section 7 beneficiaries are demoted to the status of second class citizens. Aadhaar authentication is a violation of personal autonomy.

He quickly listed his challenge to Section 7:

  1. Cannot create a second class citizenry.
  2. Overall effects of all statutes need to be looked into. With everything. We take it together are an overextension of coercive power of the State.
  3. Alternate identification should be allowed.
  4. Dignity. Non retrogression of rights is an important principle of human rights law.
  5. Every Section 7 notification is void because of being contrary to the October, 2015 interim order of Supreme Court wherein it was said that Aadhaar cannot be made compulsory. Bureaucracy cannot override these orders.

 

Divan came to the issue of Money Bill. He said that the Aadhaar Act has a huge impact on human rights.Constitution has an intricate scheme to defend part III with the final defence lying with the Supreme Court. But, before the matter reaches Supreme Court there are other bulwarks to protect the Constitution: 1. Wisdom of the Rajya Sabha 2.  Article 111 of the Constitution (assent to bills).

Divan said that this protection (Presidential review and return of bills for reconsideration) has also been done away with by labeling Aadhaar a Money Bill.

Divan said that the Supreme Court has always been the champion of human rights. He said that the government cannot bypass wisdom of Rajya Sabha and Article 111 to pass Aadhaar as a Money Bill.

Justice Chandrachud referred to his judgment on Ordinances, which used similar logic to read the Ordinances provision narrowly, curtailing them under Articles 123 and 213 of the Indian Constitution.

Divan said that the Money Bill is not only a textual 110 point. Constitution has many many defence of Part 3. Supreme Court is only is the final citadel. In this case two defences denied including Rajya Sabha review and President having the power to return.

Justice Chandrachud and Justice Sikri appreciated that argument.

Divan rebutted the government argument of there being no reasonable privacy in demographic information. He said that the other side has belittled the importance of demographic information. But in many situations, privacy of demographic information is crucial. For example, journalists doing investigative work, women who can be stalked if their demographic information is available.

Divan then reminded the Bench of Dr. Goyal’s audit reports on the malpractices by AUAs. (Recall Union in its affidavit annexed his audit reports). He handed over a brief list of features of the Aadhaar programme that makes it constitutionally fatal:

  1. Architecture of surveillance.
  2. Not a money bill.
  3. No authority to collect biomemtrics before the Act.
  4. No informed consent Etc

Divan said that the architecture of Aadhaar with full traceability enables mass surveillance, and profiling. There are a lot of lawyers who are doing this pro Bono because they believe this is a huge constitutional matter. There’s no commercial interest.

Referring to Senior Advocate Rakesh Dwivedi’s suggestion of vested interests behind petitioners – Google, Visa etc benefitting etc. He reasserted the credibility of the credentials of the Petitioners before the Court and that every one of them, lawyers, experts who have given affidavits etc have all worked pro bono out of concern for our Constitution and democracy and completely rebuked the suggestion of Mr. Dwivedi.

Divan asked whether Aadhaar survived the first five words of the Constitution of India? These words are : “We the People of India.” These words suggest choice and they suggest democracy.

Divan concluded by citing the preamble and how each word is pregnant with a lot of thought and meaning and that in his view of choice and democracy and not servitude. Reminds the Court that this is not the time to falter. Thanks the Court for the time and hands over the podium to Gopal Subramanium.

Senior Advocate Gopal Subramanium continued the rejoinder raising the basic question “What so you do about acts of misfeasance and malfeasance in the delivery of public services?” He said that t is important to note that these are State functionaries with a continuing constitutional obligation. If the obligation is not met, it cannot be reversed and the burden of proof cannot be on Individuals to establish their identity.

Subramanium’s key points were.

  1. No evidence by State.
  2. Deduplication rejects
  3. Contracts and information control completely ceded. A special oration on UID being a numbering scheme. First question to ask is whether it empowers or disempowers.

Subramanium asked whether the State had produced evidence that children want a fake midday meal or that a widow wants a second pension? It’s not the beneficiaries who are cheating the system, but by functionaries of the State. He stated that the State has not furnished iota of evidence of the identity fraud, which is the only fraud that they even claim to stop, either before or after aadhaar. All their numbers inflated.

Subramanium addressed Section 33 of the Aadhaar Act (disclosure of information). He said that this contemplates authentication records, which gives the footprint of your activities to the State. Is there a nexus between this knowledge being with the State and the delivery of public services? The answer is in the negative, he said. This violates the requirements of the privacy judgment that the infringement be minimal.

Justice Sikri said that the other side has argued that because of deduplication, fakes have been weeded out.

Subramanium remarked that this is a “voluptuous” claim. He reads out the figures. He said that all the other identity documents like ration cards are needed along with an Aadhaar number. A person can ping the authentication machine three times and get rejected and then get accepted on the fourth ping. How can we subject citizens to this? He said that in this case, a number has become a form of identity.

Subramanium asked, “Is Aadhaar really for the oppressed?” Everyone is now supposed to link it with banks, telecom etc. “What exactly is the compelling state interest that has been demonstrated?” He asked what school admissions have to do with delivery of public services. He said that this is no more empowering or enabling, but actually disemowering.

Subramanium said that if law has the effect of disempowering people, and impairing the identity guaranteed to them by the Constitution, therefore, it falls on all grounds that is Articles 14, 19 and 21.

Subramanium said that when a law imposes a condition of this kind, the State becomes a granter. It reverses the relationship between the individual and the State. Data of citizens can be used for political exercise. Aadhaar’s preponderant nature is: likely to invade. Aadhaar alters the symbiotic nature between state and citizen.

Subramanium questioned if this law is one that places fetters upon people, even though the motives are benign. He said that this law is a fetter on self actualization. However noble your intentions maybe, if you step out of the boundaries of the Constitution, then there’s no saving such legislation.

Subramanium discussed the case of West Ramnad, which was relied on by the State. He said that West Ramnad was a case about the powers of the State to retrospectively enact law. He discussed the Mysore Improvement case, which was also about retrospective lawmaking.

Subramanium said that retrospective validation is possible only if you had a law in the first place, and you had valid actions under that law. There has to be positive law if you want to abridge a fundamental right. Aadhaar was implemented without a law. He asserted that the government cannot retrospectively enact a law.

The Court rose for the day. The next hearing is at 11:30am on the  May 2018.

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