On the 13th Day of the Aadhaar Hearing, Senior Advocate Gopal Subramanium consluded his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, after which Senior Advocate Arvind Datar took the center stage and began with his arguments.
Below are the highlights from Day 13 of the Aadhaar Hearing:
- Privacy judgment talks about identifying eligible recipients but the present Act does not identify eligible recipients, instead it provides proof of identity.
- Sans criminality or any offence being committed, people cannot be asked to give their biometrics. Biometric authentication was considered only in the case of commission of crime.
- Launching of electoral rolls for purification-linking it with Aadhaar: A 3-Judge Bench of the same court had issued a note, post which the programme was suspended.
- Aadhaar Bank linking:
- Aadhaar bank linking is for money laundering but NPCI is making the database available to private parties. Anyone can get a profile of an individual from the State Resident Data Hubs. Says there’s no limitation on what info can be stored in SRDH.
- Rakesh Dwivedi: SDRH were established under MoU under the UPA regime. After the act was enacted, the data was destroyed.
- The authentication agents are not govt. agents. They’re private players. Aadhaar bridge is an invitation to business which would be done through this agent.
- Chandrachud, J: Section 57 only allows authentication by the private parties then how do they get access to the data.
- Gopal Subramanium: Due to seeding of Aadhaar with multiple databases, the entity can gain access to the profile of the individuals.
- The burden of updating the information in CIDR is on the individuals.
- Chandrachud, J: The govt. can’t be expected to keep a track of all the changes.
- Gopal Subramanium: Demographic is another thing, but how will an individual get to know that she’s due for biometric updation?
- Khanwilkar, J: In case of an authentication failure, the person can go for updation.
- Gopal Subramanium: An authentication failure is viewed as the person being a ghost, fake nowadays.
- In case the biometric info is lost or changes subsequently, the individual will have to request UIDAI to make alterations in his records.
- In case authentication fails, the entitlements may be annulled, resulting in permanent disablement. Due to technology, the possibilities of profiling are very strong.
- The algorithms are unpredictable in nature. 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.
- In the absence of a data protection law, the injury or vulnerability is heightened. No assurance can lessen that.
- The data retention should also follow reasonable and substantive reasonableness. It cannot be for all the people. That’s very broad.
- There’s an uncertainty associated with biometric systems. They’re probabilistic in nature. There is a risk of error.
- (Refers to the interim orders of the SC) Everyone including the govt. is bound by the orders of the Court. But, after 2016 Act, the govt. did not obey those orders. There has been a continuous violation. Petitioners have brought to the notice of the Court continuously. Now in 2018 we have starvation deaths. Court must grant exemplary damages and compensation to those who lost lives or were otherwise excluded.
Senior Advocate Gopal Subramanium concluded his submissions and Senior Advocate Arvind Datar began his arguments. However, CJI asked him to submit a note on points to be covered and then elaborate on those 6th March onwards.
The Bench will now hear the matter on 6th March 2018 after Holi break.