Additional Solicitor General Tushar Mehta concluded his arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on Day 28 of the Aadhaar Hearing. He was then followed by Senior Advocate Rakesh Dwivedi.
Below are the highlights from Day 28 of the Aadhaar Hearing:
- ASG: Prevention of Money Laundering Act (PMLA) amendment was made considering the larger public interest. The PMLA Rules are not ultra vires the Aadhaar act or RBI circular. There’s no challenge with respect to the PMLA rules being ultra vires the PMLA.
- Sikri, J: Rule 9(4) is challenged on the ground of proportionality. What is the need to make Aadhaar compulsory when there are other officially valid docs available?
- ASG: It is to prevent impersonation.
- Chandrachud, J: What about Arvind Datar’s submission that PMLA Rules are ultra vires Act; there is no provision under PMLA to render a validly opened account non operational; why is Aadhaar linking extended mutual funds and insurance policies as well.
- Sikri, J: Anyone can become a reporting entity under the PMLA, not just banks. How is this proportional?
- ASG: We follow zero tolerance policy when it comes to money laundering. Public interest is interest of the nation here.
- CJI & Bhushan, J: How is blocking accounts if Aadhaar is not provided not in violation of Article 300A of the Constitution?
- ASG: It’s a reasonable restriction.
- Chandrachud, J: Is the penal consequence authorized by the Act or rules itself?The Act only talks about verification of bank accounts.
- ASG: The rules are part of the Act. Penal consequence is just an ancillary provision and can be provided by the rules. (Chandrachud, J doesn’t agree) Only plenary law is considered with respect to “procedure established by law” is wrong. The rules can also be considered. Freezing of bank account is not a penalty but just a consequence.
- Sikri, J: It is a penalty. You’re depriving someone of their property.
- ASG: The point of such a consequence ( freezing of bank accounts) is so that money launderers render their account non operational.
- CJI: Our only question is whether the consequence is mandated under law or is it an overreach.
- Terror financing destroys the root of our democracy and threatens our national security. There are huge cross border implications. Both in and outside India this kind of menace happens. Therefore it’s important to link bank account with Aadhaar.
- Scheme of PMLA is three fold:
- Zero tolerance to money laundering
- Curbing black money
- Reaching beneficiaries.
- There will be minor inconvenience to some citizens but it is in the interest of the nation. Public interest and “perceived Privacy” should be weighed before taking a decision.
- Rakesh Dwivedi: People have voluntarily signed up for Aadhaar. GOI has ample means to surveil. No need of Aadhaar.
- Chandrachud, J: Technology is a very powerful enabler of mass surveillance. Elections of countries are being swayed with the use of data and technology.
- Dwivedi: We can’t compare Google and Facebook’s algorithms with UIDAI’s technology.
- Chandrachud, J: The Act does not preclude UIDAI to acquire that kind of tech.
- Dwivedi: It’s an offence under section 33. The only purpose of Aadhaar is authentication and nothing else. There is no power provided under the Act to analyze data. Meta data is also limited. The meta data is of authentication records and it does not reveal anything about an individual. Meta data consists of authentication request, result of authentication and the time of authentication only.
- Sikri, J: That is enough to reveal a lot about an individual.
- Dwivedi: The authentication request will show from where the authentication request came (for example from Apollo hospital) but there’s no way to know the location from where it came. Also the identity of the person who requested authentication is not revealed.
- Chandrachud, J: The requesting entity can store the data, considering there is not even a robust data protection law. Commercial information about an individual is also a gold mine. Surveillance doesn’t have to be interpreted in the traditional sense.
- Dwivedi: Millions like me do not care about privacy.
- Chandrachud, J: Giving fingerprints for a limited particular purpose is okay. Under Aadhaar, fingerprints are means for storing data in a central database for the purpose of authentication. Thats a problem.
- Dwivedi: The biometrics are encrypted. Also the data is not shared with anyone. Even EU data protection law does not have the kind of protection that Aadhaar act has. There is no reasonable expectation of privacy wrt demographic information. I understand if people have a problem with the implementation and enforcement of the Aadhaar act. But there’s no problem with the law and the technology.
- Chandrachud, J: Section 29(b) allows sharing of data with third parties by requesting entities.
- Dwivedi: Section 29(1) bars sharing of core biometrics completely. Section 29(b) has to be read in the context of section 29(1).
- Chandrachud, J: This Act has gone beyond section 7 benefits and that is our major concern. Section 29(3) uses the word “identity information” which seems to suggest biometrics can also be transferred.
To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.
To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.
To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.