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On Day 33 of the Aadhaar Hearing that has been going on since January 17, 2018, Senior Advocate Rakesh Dwivedi concluded his submissions and made way for other counsels to present their arguments before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from Day 33 of the Aadhaar Hearing:

  • Dwivedi: UIDAI’s control over RE is a fair and reasonable safeguard under Article 21. Data under REs is segregated. There’s no way to aggregate that data as there are over 300 REs.
  • Sikri, J: What about an individual RE collecting data?
  • Dwivedi:
    • Lets take the example of Vodafone. what will vodafone do with the authentication data? They can’t track any individual. Vodafone can do targeted advertising using the data which is already happening without Aadhaar. Vodafone has far more demographic data about an individual than UIDAI has. In the case of UIDAI, there are so many regulations and penal consequences that don’t apply to Vodafone.
    • Nobody is questioning what banks and telecoms are collecting. The single target is Aadhaar. (shows a credit card statement to the bench to show that banks have a record of all transactions made by an individual including the place of transaction.)
    • It’s not difficult to collect data about someone from Google. How much senior advocates charged for particular cases is also available online. We need to have big data, processing power and statistical know how to do big data analysis as Google is doing. Google and Facebook process tremendous data on a daily basis. UIDAI does not have that kind of algorithms.
    • It is doubtful that an RE that collects data and transfers that data without any other data has any value. Also RE s do not have authentication records. We are still conscious about providing as much security as possible because we want to gain the trust of the people.
    • Explaining the control of RE:
      • RE buys fingerprint device from a vendor. We control the vendor with respect to the hardware and software of the device.
      • We also put a key in the device so that the data is encrypted and sent to CIDR. Machine is then taken to STQC and that Dept looks into the device to see whether it meets all the requirements. Device preparation and certification happens without the knowledge of RE.
      • Information systems operator then conducts an audit of the RE and the report is submitted to UIDAI. If it is approved then the RE gets a license from UIDAI in order to operate as an RE.
      • Meta data is important for validation that the data is coming from a particular RE with which uidai has an agreement. Meta data is required for fraud management and verification.
      • REs have a data vault as well. It is controlled by trusted people. Apart from this there are two more audits conducted: annual audit and random audits by UIDAI. Even ASAs are audited likewise. Relevant regulations are 19(1)(g) and 21.
      • Nature of information is such that it is not of any commercial value. All REs are already possessed of this information and much more. UIDAI has device control which happens before the device is purchased. There are double pairs of keys.Encryption is immediate and time stamped.
      • Transmission requires digital signature with a private let. There’s a data vault. There’s complete prohibition of storing PID block. Even demographic info is prohibited from transfer. Three level auditing by information system auditor.
      • There are penal consequences if any provision of the Aadhaar Act or regulation is violated.
      • Central government has no access to UIDAI’s data as UIDAI is an autonomous body. Hence, no surveillance is possible.
    • While examining the problem of smart cards, even the EU has said that having a centralized database is important. Decentralization leads to fakes and duplicates.
    • Aadhaar SIM linking helps in ensuring that Sim card is given to the person who’s applying for it. This is a legitimate state interest. he measure to verify your SIM card one time is not excessive at all. Therefore it’s proportional to the object sought to be achieved.
  • Chandrachud, J: SC never directed in LokNiti foundation order to carry out e-KYC of mobile nos. using Aadhaar. The DoT notification says that Aadhaar SIM linking is being done on the direction of the SC while the SC had not issued any such direction.
  • Dwivedi:
    • No, it was done on the recommendation of TRAI before the Lok Niti order had even come out. My submission is that the government had a legal basis to link Aadhaar with SIM by virtue of section 4 of the telegraph act. Also, the measure is reasonable in the interest of national security.
    • There’s no possibility of surveillance via CIDR. CIDR is absolutely necessary to avoid fakes. The entire architecture is such that there’s no aggregation of data and therefore no surveillance. That’s why there’s a mix of public and private players.
    • The system stands the test of article 21 on its own and there’s no infringement of right to privacy. This project has the support of two governments because Congress had started this and Mr. Sibal was part of the cabinet that time.

_______________________

  • ASG Tushar Mehta: Does Aadhaar pass the muster of Article 300A? “Authority of law” phrase in 300A gives the power to the legislature to link Aadhaar with bank account under PMLA. The PMLA rules have the backing of the PMLA. A statutory rule is akin to law under Article 300A of the Constitution. The parliament cannot every time amend the law (PMLA) for example in respect of money laundering. Therefore a wide statutory network is provided and power is given to the rule making authority.

_______________________

  • Senior Advocate VV Giri: I want to appear on behalf of State of Kerala in order to argue on legislative competence.
  • Bench: States cannot challenge a central govt statute. You can submit bullet points on what you want to argue and then the bench will decide if you can be allowed.

_______________________

  • Senior Advocate Jayant Bhushan:
    • RBI has issued the master circular by virtue of its power under banking regulation act.PMLA Rule 9(4) provides that Aadhaar has to be submitted to reporting entity.
    • Under Rule 9(14) provides that the regulator (RBI in this case) shall provide guidelines incorporating the requirements of sub-rules (1) to (13) above and may prescribe enhanced or simplified measures to verify identity.
    • Requirements under Rule 9(1)-(13) is made mandatory by Rule 9(14). The master circular is now in conformity with PMLA rules. RBI has no option but to amend the master circular.

_______________________

  • Advocate Gopal Sankarnarayanan:
    • Aadhaar Act is valid subject to three specific provsions that have to be read down or struck down.
    • Right to identity is an absolute fundamental right. Aadhaar provides one kind of proof for identification. It arises from recognition of an individual.

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To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/SFLCin

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On Day 32 of the Aadhaar Hearing, Senior Advocate Rakesh Dwivedi continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of reasonable expectations of privacy.

Below are the highlights from Day 32 of the Aadhaar Hearing:

  • Dwivedi:
    • Privacy is strongest in the inner sanctum of the mind, but shrinks as you move outside into the world. It has to be considered whether private life is protected outside your home, because people frequently give up their privacy in these conditions. the US and UK Supreme Court treat reasonable expectation of privacy as very significant, and that the Indian position is closer to this.
    • Tthe only question is whether the restriction on the right to privacy is proportionate to the government purpose. Nothing else can be taken into account. Petitioners have applied the wrong standard in arguing that the restriction on rights should be least intrusive.
    • In the public sphere, the right to privacy is diluted. The entire Aadhaar activity is in the relational and public sphere. He says that demographic information and facial photograph don’t have any privacy concerns. There is no reasonable expectation of privacy. At the requesting entity point, it’s all dispersed and decentralised, and so it doesn’t deserve the level of protection that the CIDR is given.
  • Chandrachud, J: The point seems to be that core biometric information has higher privacy concerns. That does not mean that there is no privacy concern elsewhere.
  • Dwivedi:
    • I agree but  the reasonable expectation of privacy varies according to context. Petitioners have cited no judgments involving identity cards. 120 countries use biometric passports and nineteen European countries use biometric ID cards. The CJEU or the ECHR have never expressed any concerns with biometric ID cards.
    • In the privacy judgment, it has been said that if you willingly put up your personal information on Facebook, then you may not have a right to privacy in that information.
    • Safeguards can be read into Article 21. Degrees of safeguards will vary – for nuclear plants it will be one, and for CIDR is another.
    • The standard must be “adequate safeguards”. The risk can never be zero.
    • There must be constant vigilance. We are always improving and upgrading our safety, and after the Srikrishma Report, we will upgrade more.
    • We have provided a complete bar on sharing, and what is available with the REs is totally dispersed. The extent of privacy is much more diluted. And there is consent and a bar on using for anything other than authentication. If there are breaches, then point them out to us. But petitioners don’t want to improve it, they just want to knock it off.
    • The data protection draft law will be out by May.
  • Chandrachud, J: One area that requires consideration is remedies for breaches.
  • Dwivedi:
    • The IT Act provides for penalties, and penalties have been imposed on Airtel etc.
    • The Court and the government should work in coordination as the two great wings of State, and not in opposition. The sword should be unsheathed only in the last resort. The Court should be like a doctor and save the patient.
    • Member States have been left free to make laws.
  • Chandrachud, J: That is subject to the test of proportionality
  • Dwivedi:
    • I am not disputing that.
    • EU is now contemplating a biometric ID card.
  • Chandrachud, J (Jokes): Are they planning to seed it with Aadhaar?
  • Dwivedi: UIDAI collects only limited technical metadata.
  • Chandrachud, J: Is it necessary to retain metadata? Why do you have to retain it?
  • Dwivedi: It’s important to exercise control over the RE. There is no data about location or purpose of transaction, but only about the system, and that’s required for audits.
  • Sikri, J:  So you’re not collecting metadata about the person but only about the machine?
  • Dwivedi: Yes. We don’t know location or purpose, just device ID.
  • Chandrachud, J: Your argument might be supported By Regulation 26 proviso, which bars storing the purpose of a transaction.
  • Dwivedi: Yes, in any case the Aadhaar Act bars storing of purpose.
  • Chandrachud, J: What is the meaning of “authentication transaction data”, which can be stored under Regulation 26?
  • Dwivedi: It’s the data pertaining to a specific transaction, and there is a bar on storing purpose.

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To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/gautambhatia88

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“Development requires the removal of major sources of unfreedom: poverty as well as tyranny, poor economic opportunities as well as systemic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states.” – Amartya Sen

On Day 31 of the Aadhaar Hearing, the discussion between Senior Advocate Rakesh Dwivedi and the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ began with the former quoting the abovementioned lines.

Below are the highlights from Day 31 of the Aadhaar Hearing:

  • CJI: Liberating people from un-freedom (poverty) is at one end of the spectrum and right to privacy is on the other.
  • Chandrachud, J: Aadhaar is a means for identification according to you. The only caveat to that is that there should be no exclusion.
  • Dwivedi: The point of Aadhaar is to bring the provider of benefit face to face with the beneficiary.
  • Chandrachud, J: I’m not sure if that’s the best model. The individual should not be a supplicant. The State should go to him and give him benefits.
  • Dwivedi:
    • Various judgments of the Supreme Court on economic and social welfare culminated into the Parliament framing the Aadhaar Act.
    • What is being done under section 7 of the Aadhaar Act covers human rights of a lot of people of our country. This court should act as a sentinel to ensure that right to privacy is balanced with all the other rights under Article 21 that Aadhaar covers.
    • Privacy is a small price to pay for ensuring life itself and also the rights under Article 21 of the Constitution.
    • Aadhaar Act draws distinction between demographic info, optional demographic info (mobile no.), core biometric information, and biometric information like photograph. Idea of reasonable expectation of privacy varies from one set of data to another.
    • Reasonable expectation of privacy in case of demographic info and photo will be very low as such information is publicly available. We are concerned only about real and general apprehension or fear of the public with respect to Aadhaar. Fear is subjective.
  • CJI: Some fears are misconceived.

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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On day 30 of the Aadhaar Hearing, Senior Advocate Rakesh Dwivedi continued with his argument probabilistic method that he had begun on Day 29 of the hearing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from Day 30 of the Aadhaar Hearing:

  • Dwivedi: The algorithms which are probabilistic are not all identical. Parliament was conscious of the exclusion that could happen. It was also aware of the digital divide. Hence, provided three alternatives under section 7 of the Aadhaar Act. 2016. There can’t be denial of service. Option to furnish proof of possession of Aadhaar number under section 7 if authentication can’t be done.
  • Chandrachud, J: Does proviso to section 7 apply to third alternative?
  • Dwivedi:
    • Yes, it is applicable in case an individual has applied but has not been assigned Aadhaar number.
    • There is no question of denial. Denial is something that should not happen, ought not to happen. Though some more actions would be required to ensure this.
    • For limited purpose, ration cards are also included. If for some reason, one member of the family is unable to authenticate, any other member of family can come for authentication.
  • Chandrachud, J: Is there is any isolated pocket in country where Aadhaar services have not been able to reach?
  • Dwivedi:
    • In such a case, alternative methods will apply.
    • As of now-pending the judgment, even if someone has not enrolled for Aadhaar, there’s no compulsion under section 7. There’s still time. The third alternative under S. 7 can apply only if the enrolment process has begun.
    • In case of PDS scheme, the central govt. is competent to replace the identification card with which benefit is to be obtained if it thinks that the latter is more reliable. Thus, it can replace the ration card with Aadhaar card.
    • Every institution will have some kind of identification procedures and we will have to follow them. These are regulatory processes.
    • When you identify, it is a matter of dignity. Because you are recognised. We all strive to get recognised. It is a matter of pride.
    • No right is absolute. Regulations are permissible.
  • Chandrachud, J: There should be a choice of identity. If the choice is not there, it is not proportional.
  • Dwivedi: If you have to get benefits from an institution,you should comply with the requirements prescribed by it. Aadhaar is unique and universally applicable. No language barrier like other ID cards.
  • Chandrachud, J: If my biometric are attached to every transaction I undertake, it ceases to be just an identification mark.
  • Dwivedi: Only one finger or one iris is used for authentication. It discloses no information.
  • Chandrachud, J: Fingerprint by itself doesn’t disclose any info. But, when it attaches with all the other information, it forms a wealth of information. There comes the need of data protection.
  • Dwivedi: Data is disaggregated between different REs.
  • Chandrachud, J: In such a case, aggregation of data is all the more possible.
  • Dwivedi: In most cases, authentication is done only once. Eg. PAN. It is for lifetime. For sim cards, it is done only at the time of obtaining it. So, where is this multiplication of authentication from morning to evening coming from? Realistically speaking, there’s no trail of authentication from morning to evening. No real time tracking is done.
  • Shyam Divan interjects: The demo of withdrawing Rs 100 using a thumbprint was shown in the court. That’s tracking.
  • Dwivedi: Where is it provided in law that you need to give thumbprint every time you transact? You only have to link it with your bank account.
  • Shyam Divan: I am asked for my thumb impressions everytime I need to open a Fixed Deposit.
  • Dwivedi: Not everybody is capable of opening FD everyday. It is done only once or twice in a year generally.
  • Dwivedi (On dignity): There are two parts of preamble.
    • “To secure to all its citizens…” and
    • “to promote among them all…”
    • Securing justice is a part of the basic feature of the Constitution. Minimum requirements to enable a man to survive to live is a position duty of the State. And it is for these minimum requirements that the Acts like NFSA, etc. are there.
  • Chandrachud, J: Constitution protects dignity in all its forms.
  • Sikri, J: Food is a part of dignity and so is privacy. When there’s a conflict between the two, it has to be considered which should prevail. But, why can’t we say that there’s no conflict. Both are to be ensured.
  • CJI: The point is when you take fingerprints for Aadhaar, it gets stored in Aadhaar. This is an invasion of right to privacy.
  • Dwivedi: Any system which involves biometrics will require storage of biometrics- either at single point or multiple.
  • CJI: Minimal intrusion with legitimate interests have to be ensured.
  • Dwivedi: Providing services and benefits is to ensure dignity and liberty of individuals. Which is a legitimate interest.

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To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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Senior Advocate Rakesh Dwivedi continued with 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 29 of the Aadhaar Hearing.

Below are the highlights from Day 29 of the Aadhaar Hearing:

  • Dwivedi: It’s better to tighten the nuts and bolts of Aadhaar rather than demolishing it completely. Information is strictly confined to the purpose of authentication. Interplay of section 8 and 29 pf the Aadhaar Act, 2016 say that core biometrics are not shared. Data shared under section 29 is non biometric data.
  • Chandrachud, J: Section 8(3) combined with section 29(3) means that the requesting entity will know the purpose of the authentication.
  • Dwivedi: If the bench is unsure whether requesting agencies collect information that they are not supposed to then the bench should read down sections 8(3) and 29(3) to make sure that REs do not know the purpose of the authentication or collect any information.
  • Chandrachud, J: A hospital may have data on an individual based on the number of times the individual has requested authentication. This can be helpful information for pharmaceutical or insurance companies.
  • Dwivedi: GDPR provides no curative measures. Aadhaar Act provides enough data protection to citizens. No data protection law can provide hundred percent protection. The test should be ” reasonable, fair and just” protection. Aggregation, analysis or transfer of data is not allowed by the Aadhaar Act.
  • Chandrachud, J: : What use the REs are making of the data, we don’t know right now.
  • Dwivedi: We can only tackle real apprehensions.
  • Chandrachud, J: Real apprehension is that elections are swayed using data analytics. These problems are symptomatic of the world we live in.
  • Dwivedi: Can’t compare this to Cambridge analytica. We don’t have algorithms that Google has.
  • Chandrachud, J: We can’t have a blinkered view of reality.
  • Dwivedi: UIDAI does not have learning algorithms. Aadhaar Act does not authorize it. We have simple matching algorithms. The Bench should not give in to the hyper phobia that the petitioners have created. We have a powerful media and competitive interests to check any misuse of data.
  • Chandrachud, J: Interface of Aadhaar with the world outside is the area of concern.
  • Dwivedi: Examine the design of the Act. We don’t want any scare mongering. We want people of India to trust us. Section 28 of the Act also provides protection of information. The information will be in the control of UIDAI and will be kept secure in CIDR. Section 57 does not allow just anyone to become a requesting entity. It’s a limited exercise. UIDAI will not approve anyone to become an RE unless it is satisfied that the particular entity needs to use the facility of authentication.
  • Chandrachud, J: Why are words “body corporate or any person” used in section 57? That breaks the nexus of the Act with the consolidated fund of India. What is the point of involving private parties in the Aadhaar infrastructure?
  • Dwivedi: Private players are not exempt from constitutional norms. And the divide between public and private sector is narrowing.
  • Chandrachud, J: Section 3 says Aadhaar is an entitlement. How did it become mandatory?
  • Dwivedi: It was made mandatory by other Acts. Aadhaar Act has nothing to do with other linkages of Aadhaar except Section 7. UIDAI is mandate-neutral. The government is making it mandatory under other Acts. The bench can look at these Acts separately. Under the Aadhaar act, obtaining Aadhaar is voluntary.
  • Chandrachud, J: Aadhaar can be made mandatory under a law or through a contract under section 57.
  • Dwivedi: Object of section 57 is not to expand but to limit. Backing of contract is needed. Any paanwalla or chaiwalla cannot become a requesting entity. It has to be pursuant to a contract. UIDAI may still refuse an entity from becoming a requesting entity.
  • Chandrachud, J: How is need for authentication decided? For e.g a taxi service or software app.
  • Dwivedi: There has to be a prior contract and then uidai is approached for request.
  • Sikri, J: Where is the guideline for what will be considered a “need” for authentication and what won’t be.
  • Khanwilkar, J: Prior contract comes before permission from UIDAI is taken. Schedule A of the Act that outlines who call can be REs is very wide.
  • Dwivedi:
    • The rules of IT Act 2000 and the punitive provisions of the Act are also applicable to Aadhaar data under Section 30 of the Aadhaar Act. This is further security. Anyone who attempts to gain unauthorized access to CIDR will be imprisoned for ten years. CIDR comes under critical information infrastructure.
    • Aadhaar is not just an exercise to provide benefits and weed out fakes but also to bring the service providers face to face with the beneficiaries. That’s the revolutionary aspect of Aadhaar.
    • None of the other identification cards are universally held in the country. These cards are only for initial identity and address proof. Nobody will give their wrong name or address when biometrics are involved.
    • Aadhaar is not the panacea for all evils but the problems that were occurring on account of fake identity documents will be solved.
    • Petitioners were arguing that there’s no legal mandate to store information in CIDR. RD quotes section 10 in this regard.
    • Petitioners argued that we have hired foreign suppliers. Only software is used by UIDAI as licensee. The hard disks and servers belong to UIDAI. Even technicians are given access to CIDR only when there’s a problem in the process of UIDAI officials.
    • Another argument that was raised was that Aadhaar is probabilistic. It is not probabilistic, but deterministic.
  • Sikri, J: You have to give a proper response to that. Argument was from the exclusion angle.
  • Dwivedi: Probability governs us everywhere. Nothing is certain. Just because it is probabilistic, it cannot be discarded.
  • Chandrachud, J: If the probability leads to deprivation of fundamental rights, then there should be safeguards in place to ensure that this deprivation doesn’t happen. There should be an administrative machinery in place to ensure no genuine beneficiary is deprived.
  • Dwivedi: I agree that nobody should be denied benefits due to authentication failure. Our submission is inclusion. Section 7 itself provides a fall back mechanism if authentication failure happens. We have to look at effective implementation.

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To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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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.
  • ASG:
    • 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.

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To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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On Day 27 of the Aadhaar hearing, ASG Tushar Mehta continued with his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from Day 27 of the Aadhaar Hearing:

  • ASG:
    • The argument that the Aadhaar act was made in violation of interim orders of the SC has already been refuted in the case Binoy Viswam (Aadhaar PAN linking judgment). Only the challenge to article 21 is open with respect to Aadhaar. All the other aspects have already been dealt with in Binoy Viswam. It has already been proved that Aadhaar linking with PAN will help curb money laundering and black money, and prevent tax evasion. This question is not open to challenge anymore as it has already been decided by this court.
    • Biometrics will help curb the growth of shell companies. This is again a facet of reasonableness and proportionality.
    • Balancing of interests is also a facet of proportionality, which was propounded in the judgement of modern dental college.
    • Aadhaar will help law enforcement curb terrorism.
    • There’s no random scrutiny of people in the name of Aadhaar. The exercise of linking Aadhaar with bank, phone etc is only done to weed out fake or duplicates.
    • IT Dept uses third party information to identity cases of defaulters. Rule 114b requires quoting of PAN to file returns. A person can easily say that they don’t have PAN and then evade taxes. Pan Aadhaar linkage will prevent this kind of tax evasion.
    • A statutory measure should not be excessive with respect to the object it seeks to achieve and the court will not look into the legislature’s wisdom till it’s shockingly disproportionate.
    • If there’s a competition between right to privacy and the right to information of a citizen, the former has to be subordinated with the latter for the sake of larger public interest. The fair needs of the society and the nature of social control has to be kept in mind when enforcing reasonable restrictions.
    • Legitimate state interest is enough. No need to prove compelling state interest. The word ‘necessary’ is not synonymous with ‘indispensable’. It only has to be proved that it’s necessary for larger public interest. If there’s an overwhelming public interest then there’s no need to apply the “least intrusive” test.
    • Menace of hawala transactions and money laundering is a global concern.
  • Sikri, J: There’s no doubt that money laundering is a problem. The only question that needs to be answered is how Aadhaar will prevent money laundering.
  • ASG:  Prevention of Money Laundering Act not a toothless law anymore. The formation of rules flows from section 12(c) of the Act.

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To read the highlights from the submissions by ASG Tushar Mehta, click here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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On Day 26 of the Aadhaar Hearing, Attorney General KK Venugopal completed his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Additional Solicitor General Tushar Mehta began his arguments before the Bench.

Below are the highlights from Day 26 of the Aadhaar Hearing:

  • AG: Section 59 of the Aadhaar Act, 2016 provides retrospective effect. (Cites cases to show that a particular action can be validated by a subsequent Act, as it happened in the case of Aadhaar. Reads out the third version of the Aadhaar enrollment form. Reads out the content and says it’s free and voluntary and has provisions for taking informed consent.)
  • Chandrachud, J: The first two forms did not have any reference to biometrics. It was only inserted in the third form.
  • AG: The CBI had gone to Bombay high court to obtain biometrics in connection of a rape, since UIDAI had refused to provide them as biometric data cannot be shared without the individual’s consent. The state has no interest in collection of biometrics except for the benefit of the individual himself. Emphasizes that invasion is privacy. When there was no right to privacy, the government acted in a bonafide manner when they enacted Aadhaar. Therefore that action cannot be said to be void by retrospective action.
  • Chandrachud, J: the question of privacy was irrelevant in MP Sharma. Only the first part of Kharak Singh affirmed that there’s a right to privacy. The subsequent judgments that affirmed privacy relied on the first part of Kharak Singh.
  • AG completes his submissions.
  • ASG Tushar Mehta:
    • The challenge to section 139aa was examined by this court. Apart from right to privacy, all other aspects were considered.
    • In Privacy Judgment, all nine judges have affirmed that right to privacy is not absolute.
    • J. Chandrachud laid down the three tests under which privacy can be invaded in particular cases. Five out of nine judges have upheld the principles of legitimate state interests and proportionality.
    • A legislation has to pass all four tests to be valid. Three laid down in Privacy Judgment and also the test of manifest arbitrariness.
    • All these tests were examined in Binoy Viswam although in the context of Article 19.
    • Another test will be the test of larger public interest.
    • All the demographic information that is required under Aadhaar was already being taken since 1989 under section 139a of the income tax (for obtaining PAN).
    • Left hand thumb impression was also taken for people who can’t sign. Bench says there’s no collection of biometrics and there’s no authentication taking place.
    • Those who have already taken PAN do not have any legitimate interest in withholding information that they have already provided for obtaining PAN.
    • 1.3 lakh cases of duplicate PAN were found. Says that PAN can be misused for the purpose of tax evasion, black money , setting up shell companies etc. Aadhaar will ensure that one person has one PAN by interconnecting the PAN-aadhaar database.
    • Even companies need pan cards. And the documents used for obtaining PAN can be easily forged. Therefore, Aadhaar with the use of Biometrics will prevent that.
    • Fake PAN cards are used to create shell companies abroad and Aadhaar can make sure that this does not happen.
    • Uniqueness of pan is important. Deduplication test needs to be conducted. Demographic way of verifying de duplication is not fool proof. Hundred percent verification is possible with Aadhaar as biometrics and Iris scans will be used.
    • There’s a huge gap between the no.of PAN holders and the entire tax base.
    • Finance minister has described financial frauds in his Feb speech. Also our tax collection is very low in our GDP ratio. We are a largely tax non compliant country and the burden of people who evade taxes falls on honest tax paying citizens.
    • 17.4 cr out of 36 cr tax payers have already linked their Aadhaar with PAN. Even transgenders are included without having to disclose their gender.
  • Bhushan, J:  You’ll have to prove there’s no violation of privacy. In substance Puttaswamy and Shaira bano retrospectively ratifies what was held in Binoy Viswam.

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To read the highlights from the other submissions by the Attorney General, click here, here , here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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On Day 25 of the Aadhaar Hearing, Attorney General KK Venugopal continued arguing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the safety aspect of biometrics.

Below are the highlights from Day 25 of the Aadhaar Hearing:

  • AG:  Finger imaging technology is 99.9% accurate. Biometrics is a very safe and accurate technology and can solve problems such as money laundering, bank frauds, income tax evasion etc.
  • Sikri, J: Bank frauds weren’t caused because of multiple identities.
  • Chandrachud, J: Aadhaar will not prevent an individual from operating layers of commercial transactions. It won’t prevent bank frauds either. Can only help in providing benefits under section 7 of Aadhaar Act, 2016 at most. Mere legitimate state interest does not ensure proportionality. Your submission lacks this nuance.
  • AG: Aadhaar will help in income disparity and eliminating poverty.
  • Sikri, J: The gap is widening. More than 70% wealth is in the hands of 1%.
  • Chandrachud, J: Proportionality is key. How far can the state cast the net of Aadhaar. Only section 7 seems to be understandable.
  • Sikri, J: You cannot assume that the entire population consists of defaulters and violaters. What is the logic in linking all sim cards to aadhaar.
  • AG: Terrorism will be curbed by doing this.
  • Chandrachud, J: Do terrorists apply for sim cards? It’s a problem that you’re asking the entire population to link their mobile phones with Aadhaar.
  • AG:
    • We are asking for minimal information via Aadhaar. Most information is already available in public domain. The question is to what extent has Aadhaar invaded privacy? It’s as minimum as possible.
    • Aadhaar is required only for section 7 benefits, banks, income tax and mobile nos. Apart from that it’s purely voluntary.
    • Court needs to balance two competing rights. Maintains that right to food, right to employment, right to medical care, etc trump right to privacy. Can right to privacy be invoked to deprive other sections of the society?
    • The invasion to privacy is so minimal that it can’t even be considered an invasion. In X v. Hospital Z right to privacy was balanced against right to information. The appellant ( a man) had HIV and had the right to non disclosure. However, the court had held that his fiance had the right to know of his disease.
  • Sikri, J: This is the case of balancing the rights of two person. In the case of Aadhaar, you’re giving a person food in exchange of their privacy.
  • AG: The bare minimal requirements for identification for an individual is alone taken and to the extent that the technology permitted. Should people have basic right to life under article 21? Can it ever be challenged on the ground that we have a right to privacy?
  • Bhushan, J: Minimal invasion is subjective. What maybe minimal for one might not be minimal for you.
  • AG: Please look at the information that is taken and look at it from objective standards. We have to look at the larger interest of the country.
  • Chandrachud, J: We have to look at three things: informed consent, purpose limitation, and enough security.
  • AG: The CIDR is completely safe.
  • Chandrachud, J: We have to look at what proportionality means. Proportionality hasn’t been defined in the Privacy judgement.
  • AG: Without the minimal information that is collected, the entire architecture of Aadhaar couldn’t have been framed. Sections 29 a and b contain purpose limitation. Aadhaar was voluntary when it was rolled out, therefore there’s no question of violation of any right.
  • Sikri, J: Is it permissible to say that I’ll give you food, shelter, etc but you’ll be my slave?
  • AG: Slavery is not permissible.
  • Chandrachud, J: Your argument to save the validity of the act does not take into account what happened before the act was passed. There was no protection for the citizens that time. There’s no retrospective effect also. What about collection of data by state Governments?
  • AG: State Governments act as the agent of the Central Government.
  • Khanwilkar, J: Is biometrics locking option available for people who don’t want to use Aadhaar?
  • Shyam Divan intervenes: There’s no way to opt out of the Aadhaar system.

____________________________________________________________________________________________________________________________

To read the highlights from the other submissions by the Attorney General, click here, here and here.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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On Day 24 of the Aadhaar hearing, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ continued hearing the arguments of Attorney General KK Venugopal.

Below are the highlights from Day 24 of the Aadhaar Hearing:

  • AG:
    • We live in a digital era and Aadhaar is the best way to prevent money laundering and deliver subsidies and benefits. A lot of Government fund has gone into this project.
    • Aadhaar will last for a long time in the future. It has been approved by UN and world bank. Aadhaar is an ongoing process and the technology and security will be updated as and when required.
    • Policy decisions of the government approved by experts are not subject to judicial review. Three organs of the State should have mutual respect for each other in a democracy.
    • Development will slow down if there’s judicial review of every administrative action. Courts should not interfere in matters of technical expertise. The only duty of the court is to expound the language of the act. They cannot decide if a particular policy decision is fair
  • Sikri, J: Petitioners are arguing on the basis of proportionaliy. You say there’s minimal invasion of privacy. Petitioners are challenging that argument.
  • AG: State has a legitimate state interest in rolling out Aadhaar. Aadhaar is in line with the Privacy judgement.
  • Bhushan, J: We are not concerned with policy decision. We are looking at the Act and regulations.
  • AG: Courts cannot question the wisdom of experts. There’s no question of privacy involved in this case. The entire challenge is whether Aadhaar is safe and secure, which we have already proved it is. The sixteen digit virtual ID is an excellent safety measure.
  • Chandrachud, J: Is the onus on the individual to generate a virtual ID?
  • AG: Yes, it’s on the individual.
  • Chandrachud, J:  Can 20 Crore people do it?
  • AG: It’s an additional measure.
  • Chandrachud, J: Maybe this measure should be applicable to every Aadhaar number without the individual having to generate it. Perhaps Aadhaar passes the test of legitimate state interest, but proportionality is in question.
  • AG: It stands the test of proportionality because all alternative measures were considered before adopting Aadhaar. The Court should not become an approval authority. It is the duty of the State to look after the welfare of the people in a democracy.
  • Chandrachud, J: “Biological attributes” is open ended.
  • AG: Blood, urine, DNA can be added, but it’ll be subject to examination by the courts, just like right now the court is examining whether collection of fingerprints and Iris scans are a violation of privacy. Parliament will be an oversight body.
  • Chandrachud, J:  The power of UIDAI to decide what is ‘biological attributes” and the method of collecting it has to meet the test of proportionality. The regulations don’t need the approval of the parliament under section 55. The parliament can only disapprove of it. But the initial power to frame regulations lies with UIDAI which might be a case of excessive delegation.

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To read the highlights from the other submissions by the Attorney General, click here and here

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Hot Off The PressNews

The University Grants Commission (UGC) vide its letter dated 21-03-2017 has requested all the Universities to introduce identification mechanisms like photograph and Unique ID/Aadhaar number in students’ certificates. Such features are useful for the purposes of verification and curbing duplication. At the same time, they help in introducing uniformity and transparency within and across the system of higher education in the Country. UGC has also requested all the Universities to inscribe the name of institution in which a student is enrolled for a program of study as well as the mode of delivery (regular, part-time or distance).

[Press Release no. 1527337]

Ministry of Human Resource Development

Hot Off The PressNews

After Ajay Bhushan Pandey, the CEO of UIDAI, made a PowerPoint presentation before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the technical and security aspects of Aadhaar in the last 2 days of the hearing, the petitioners submitted a list of questions based on the presentation. On Day 23 of the Aadhaar hearing, the Bench called upon Attorney General KK Venugopal to answer the said questions.

Below are the questions answered by the AG and the highlights of the Courtroom exchange on Day 23 of the Aadhaar hearing:

  • Q: What are the statistics of authentication failures?
  • AG: We cannot give a number because we don’t track this kind of information.
  • Q: What about the biometrics exception?
  • AG: There are other methods of authentication available like through mobile number. The QR code on Aadhaar card can also be scanned to get a person’s details, therefore, biometrics authentication is not the only way. Requesting entities have to provide exception handling measures. This is given in the Aadhaar Act, 2016 itself.
  • Chandrachud and Sikri, JJ:  We don’t know if the measures are being implemented on ground. Government will have to answer that at some point since UIDAI is only responsible for the architecture of Aadhaar. They cannot guarantee that there has been no denial of service.
  • AG:
    • There is no opt out option for Aadhaar, even for children.  Aadhaar was adopted to ensure that there are no fake identities. Aadhaar has strong de duplication detection system. 6.7 crores rejections have happened till now due to de duplication.
    • Aadhaar is an evolving technology. And all other alternatives were considered for a period of ten years. The Act can always be amended and rectified. The Aadhaar project is one of a kind and has been praised all over the world.
    • Aadhaar is a policy decision taken at the highest level of the Government, therefore, Courts should not interfere to determine its validity.
    • The judges have, Privacy Judgment, agreed that privacy is not absolute. Privacy judgment lays down the three conditions under which privacy can be invaded and Aadhaar satisfies all three. These conditions are:
      • There should be a legislation.
      • Legitimate state aim.
      • Proportionality.
    • Aadhaar invades privacy as little as possible. We couldn’t have formulated a law so that there could be a lesser invasion of privacy. This is the least encroachment of privacy.
    • Data protection expert Committee i.e. SriKrishna committee will submit it’s report by May 15.
    • The State can always enforce reasonable restrictions to protect legitimate state interests.
    • Privacy is nowhere described except in the dictionary. The court has to look at each individual case.
    • Curbing black money, providing subsidies, benefits and services are legitimate state interests of the State.
    • Right to live a life of dignity trumps right to privacy. Aadhaar in it’s initially stages was voluntary, therefore no one was coerced to enroll.
    • Before the Privacy judgement, there was no way for the Government or the people to know there was a right to privacy.

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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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: The Commission recently dealt with a second appeal wherein the appellant contended that after having taken voluntary retirement from the post office, even though she was supposed to receive her on the 1st of every month, that was not the case when in March 2017, her pension was withheld for want of linkage of her Aadhaar to her pension account along with 55 other such similarly situated pensioners. She mentioned that the CPIO and the FAA had held back information which she sought, regarding the names of all the other pensioners whose pensions were withheld owing to the same reason forwarded to her as the authorities under the grab of Section 8(1)(j) of the RTI Act, 2005 refused to give out personal information which the appellant believed to be an unsatisfactory reply. The appellant also sought a copy of the order wherein it said that Aadhaar is necessary for payment of pension since that had not been produced to her yet.

Prof. M. Sridhar Acharyulu, sitting for the Commission, observed that pension “is a matter of life and living” for pensioners who are “totally dependent upon the paltry amount of pension”. Hence, information which relates to pension should be treated as information concerning life and hence, response should be given within 48 hours. Special mention was afforded to Section 7 of the RTI Act wherein it has been mentioned that the PIO shall “as expeditiously as possible” give out the information sought which was not done in the present case. Further on, the Commission notes that it is a duty under the Contract Act, Consumer Protection Act, Trusts Act and also the Right to Information Act to pay timely pension or to rectify any problem relating to payment of pension to relieve the pensioner of any suffering arising out of the delay/ non-payment of pension. The Commission held that the postal authorities have a statutory duty to disclose the reasons behind their demand of linking the Aadhaar with pension payment and withholding payment of pension on not doing so. The Commission referred to K.S Puttaswamy v. Union of India, (2015) 10 SCC 92 wherein the Court held that citizens cannot be forced to produce their Aadhaar to receive government welfare scheme benefits. This Court had further clarified in its order dated 15/12/2017 that such a compulsion couldn’t be made since that was in contravention of the citizens’ fundamental rights.

As for the issue of not presenting the appellant with the names of all the other people whose pension had been withheld on the same grounds as the appellants, the Commission did not think of such information being “personal information” which the CPIO would have to protect. The Commission thus directed the CPIO to show-cause why maximum penalty should not be imposed upon him for the wrongful reasons given by him in his reply and why the postal authority should not be ordered to pay compensation to the appellant for causing delay, loss and harassment to her in the entire process. Additionally, the Commission directed the respondent authority to provide the certified copies of the orders by which the other employees’ pension had been delayed along with their names. [N.N. Dhumane v. PIO, Department of Posts, 2018 SCC OnLine CIC 21, order dated 27.2.2018]

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After Attorney General KK Venugopal sought the permission of the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on Day 20 of the Aadhaar hearing to allow the CEO of UIDAI to present a PowerPoint presentation explaining all technical and security aspects of Aadhaar before it, the Bench allowed the same and asked the petitioners to submit a questionnaire based on the presentation on the next date of hearing i.e. 27.03.2018.

Below are the highlights from the presentation by Ajay Bhushan Pandey, the CEO of UIDAI, on Day 21 and 22 of the Aadhaar hearing:

Day 21:

  • In pre Aadhaar times, most people didn’t have IDs. Even I didn’t have an ID since I come from a small village. From 2000-09 also, people didn’t have IDs. Voter ID also doesn’t solve the problem. Children can’t get it.
  • Getting a ration card was also difficult because it required other IDs to procure a ration card. Voter id and ration cards are region specific. It’s not nationally accepted.
  • Aadhaar is nationally verifiable digital ID. It’s not difficult to procure. Genuineness of ration card is not easy to ascertain.
  • The 12 digit Aadhaar number is a completely random no. Once issued, it’s never issued again, even if the person dies. We did not want to link it with citizenship and it includes transgenders and children.
  • People may not be able to provide biometrics due to reasons like leprosy, but we have made exceptions for such cases.
  • Enrollment and updation can happen in any part of the country. It’s a portable entitlement. Not region specific, unlike other IDs. There’s no data sharing without consent.
  • Data is shared only on the instructions of district judge and for national security.
  • Even father’s name is not necessary. No info on religion, caste etc is collected. In the US, to get a birth certificate, a lot of information is collected. Even info like the kind of pregnancy is taken.
  • Chandrachud, J: What is the biometrics exception for people who can’t possibly give their biometrics?
  • Pandey:
    • Authentication will happen through OTP in such cases.
    • Enrollment agencies are both public and private. We empanel these agencies based on certain criteria. Then registrars decide of an agency is fit to be an enrollment agency.
    • We have operator certification agencies along with 30k enrollment centres. Decentralized enrollment, but the data is stored in a centralized place. There’s a safe button with enrollment agencies to encrypt data (2048-bit).  It’ll require the strength of the entire universe to break that encryption! Traceability of all actors is ensured through audit trail.
  • Sikri, J: Why did you de-register so many agencies then?
  • Pandey: It was due to corruption mostly. Also some operators were not entering the details properly. We have very strict quality control standards.
  • Sikri, J: It’s incomprehensible that 49,000 people fall in that category.
  • Pandey: We have high quality parameters. 120.3 cr have enrolled. we enrol children as soon as they are born. We don’t take biometrics of the infant. Only photograph is taken. Biometrics of parents are collected. At the age of 5, we take the child’s biometrics and then again at age 15.
  • Sikri, J:  Do you contact the child or do they have to come to you? This was one of the arguments related to exclusion.
  • Pandey: Anganwadi workers themselves become enrollers. Also, enrollment camps are set up in schools. (Gives details on Aadhaar customer care and how to locate Aadhaar agencies)
  • Chandrachud, J:  What happens when a person’s biometrics change? For eg, for workers and labourers.
  • Pandey:  People can go to enrolment centres and get their details updated.
  • Sikri, J: Many people might not know that their biometrics have changed. What do they do?
  • Pandey:
    • In such cases, a person goes for authentication, for example to a PDS shop and his Biometrics don’t match, then an error code is sent to UIDAI and then the person will be asked to update his biometrics. (Chandrachud, J is not convinced with this method. Says this will lead to exclusion.)
    • A circular was issued yesterday, which said that if a person’s authentication through biometrics does not happen, then he shall not be denied benefits for that reason.
    • Every Aadhaar card has a QR code, which prevents de duplication. The QR code will also show the person’s photo. This method can also be resorted to if biometrics don’t match.
  • Chandrachud, J: You’ll know when there’s an authentication failure in your database, but you won’t know if there has been denial of service.
  • Pandey: We tell entities to make exception handling measures.
    • Aadhaar enrollment is done in prison also. We are starting enrollment centres in banks and post offices. Enrollment and updation of Aadhaar is a continuing process. The total cost of an aadhaar card is less than one dollar.
  • Khanwilkar, J: Other side claims that Aadhaar software is designed outside india, and is prone to tampering.
  • Pandey:
    • Only biometrics matching software has been taken from the world’s best companies. Rest has been developed in India. The servers are ours. We have 6000 servers. Just because we are using the services of these companies, doesn’t mean that they have our data. The biometrics is also anonymized by a reference number before it’s matched against the biometrics stored in the central database.
    • Till now no agency has taken biometrics data for the purpose of national security. We have denied data to CBI also.
    • We have registered devices for authentication. The devices use our key for encryption. The biometrics is not shared with the requesting entity also. Authentication process takes less than a second. We don’t collect purpose, location and details of the transaction.
    • We are doing four crore authentications everyday. We don’t know the purpose of these authentications. Information remains in the silos and merging of silos is also prohibited.

 Day 22:

  • Pandey: Operators check individual packets of data received during enrollment. There are 65 operators who are responsible for verifying biometrics.
  • Chandrachud, J:  Is it possible for the enroller to make copies of the data before the data is encrypted and sent to CIDR?
  • Pandey: Enroller does not have access to biometrics. it’s collected by uidais software. Also retaining data by the operator is an offence. We have zero tolerance policy. We have started phasing out private enrolment agencies. Now only banks and post offices will do it. A notification was issued in July that says that 12500 banks and 15000 post offices will become operator agencies.
  • Sikri, J: That is because you don’t need so many enrollment agencies now. People have already enrolled.
  • Pandey: We are doing it for updation of Aadhaar. Our central authentication server is not connected to the internet for security purposes.
  • Chandrachud, J: Central authentication server is not connected to the internet for security purposes.
  • Pandey: Few dozen.
  • Chandrachud, J: AUA has a record of how many times an authentication request was made even if UIDAI doesn’t.Parting with that data is a commercially profitable enterprise. The private sector AUA can misuse that data.
  • Pandey: They are prohibited under Section 29(3) of the Aadhaar Act. Section 38(g) also prohibits it. Further there are regulations to prevent such misuse. Regulation 17(1)(d) for example.
  • Chandrachud, J: The problem area is that private service providers have a record of authentication requests which can be misused in various ways to profile individuals.
  • Khanwilkar, J: The state has to clear the apprehensions of the petitioners with respect to the software of Aadhaar.
  • Pandey: Software is secure and there hasn’t been one data leak till date. (Tells court to not believe media reports. Denies recent report of breach by ZDnet). Now we have made it a standard practice to only display the last four digits of the Aadhaar no., wherever needed.
  • Chandrachud, J: The high level of security maintained at CIDR is not maintained at the other end like AUA also. Unless the security at the other end of the spectrum is secured, Aadhaar will be a problem.
  • Pandey:
    • Aadhaar based authentication and other services like withdrawal of funds is akin to a walking ATM. (physically demonstrates the process of authentication. Shows what all information is displayed. Says location, purpose etc is not showed.) 
    • Debit cards and pin nos. are difficult to use by most people in India. Aadhaar makes it simpler and allows people to be financially included.
    • A person can enter his/her Aadhaar details on uidais website to check her authentication history. This way he/she can know if her Aadhaar no.was misused.
    • We have no meta data that reveals anything about an individual such as likes and dislikes.
    • The technology and architecture board review the technology of Aadhaar. Similarly the security review board reviews the security of Aadhaar. Security is an ongoing challenge and we need to keep upgrading it. (discusses the privacy safeguards in Aadhaar like virtual I’d, uid token, purpose and use limitation, strict confidentiality, online access to authentication history, biometrics lock, strict punishment under the Aadhaar act)
    • We can make further regulations if there are any concerns related to the security and privacy of the Aadhaar ecosystem.
  • Sikri, J: It cannot be ruled out that authentication history will not be shared under section 33.
  • Pandey: Till date we haven’t shared data with any other agency.
  • Sikri, J (on Virtual Aadhaar ID generation): How many people will be able to use it? You can’t explain illiterate people to use virtual ID.
  • Pandey: this is just an additional safeguard apart from the Act.
  • Sikri, J: If the authentication logs are kept with the authentication/requesting entity. What is the nature of this data?
  • Pandey:
    • Details except biometrics are kept.
    • Audits are done on AUAs, and requesting agencies, by UIDAI itself or by an agency appointed by them to ensure smooth functioning of the system. Anil Jain, professor of Michigan state university, and expert on biometrics, was consulted. He suggested multi modal biometrics authentication i.e both iris and fingerprints should be combined for the process of identification and authentication. Another expert was consulted and he suggested that iris should be used, because fingerprints often don’t work.
  • Bench: AG should be making such arguments, not CEO of UIDAI.
  • Pandey: Using virtual ID and uid token ensures that databases are not joined. We make distinctions between what agencies require real Aadhaar no.and what agencies do not. For eg. Telecom does not require real Aadhaar no. But income tax does.
  • Bench: Submit a note explaining Virtual id and uid token and how their usage prevents duplication.
  • Pandey:
    • UID token is a 72 character alpha numeric string meant only for system usage. For the same resident, different AUAs or KUAs will have different uid tokens. Aadhaar cannot be reverse engineered from the token.
    • Central database of biometrics is important, to ensure uniqueness. Uniqueness may not hold true in the case of smart card, and one person can have multiple cards with different identities and same biometrics. There’s no identity theft if Aadhaar is lost. The same cannot be said of smart cards.
    • Surveillance is not possible with CIDR as silos are not merged. Surveillance is possible by smart cards by merging databases.
    • Keeping too much information on a smart card is not a good idea. Replacement of smart card with a better technology in the future is a huge responsibility. Changing encryption kept on a smart card from time to time is not possible. Says offline smart card is not a substitute for online authentication. (On Singapore like Smart card system)
  • CJI:  Does the enroller or requesting entity has access to any data?
  • Pandey: Data is encrypted and sent to CIDR, so there’s no question of misuse.

Petitioners then submitted a list of questions based on the presentation. They also argued that the deadline for Section 7 benefits should also be extended. Fourteen crore forty eight lakh authentication failures have taken place for section 7 benefits and subsidies. CJI, however, refused to extend the deadline.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Hot Off The PressNews

After hearing the submissions of the Counsels appearing for the petitioners for 19 days, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ began hearing the submissions of the Attorney General KK Venugopal on the 20th Day of the Aadhaar hearing.

Below are the highlights from the submissions of AG KK Venugopal on Day 20 of the Aadhaar hearing:

  • Various expert committees have examined Aadhaar, and other alternatives were also considered before Aadhaar was decided upon. Many countries have already implemented unique identity systems. Even World Bank approves of Aadhaar Scheme. (Cites “identifications for development” report of World Bank.)
  • CEO of Aadhaar has a PowerPoint presentation explaining all technical and security aspects of Aadhaar. He will be able to answer all questions related to Aadhaar.
  • CJI: We want to hear the legal contentions first, especially on Privacy and anonymity. We also want to hear about virtual mass surveillance.  In the name of security you can’t impose a stamping culture where everyone is stamped with an Aadhaar. Inspite of assurance of safety, your database is not entirely safe. I want the State to refute all these contentions made by the petitioners.
  • AG: After seeing the PowerPoint presentation, the State will be able to explain their legal contentions better. We also want to show a four minute video on security of Aadhaar. All doubts of duplication will be cleared through it.
  • Bench:  We will discuss if we want to see the PowerPoint presentation.
  • AG (continuing with his arguments):
    • Huge money has been saved by giving benefits and subsidies via Aadhaar. Gap between rich and poor will reduce with use of Aadhaar.
    • From 2009 to 2016 , Aadhaar was completely voluntary. But people still signed up for it. So question of coercion does not arise, at least until September 2016.
    • Article 21 encompasses right to employment, education, shelter etc. Aadhaar act is helping in achieve all these rights for the people.
  • Sikri, J: There’s a clash between right to life and right to privacy. People are getting excluded. There have been various affidavits filed proving the same.
  • AG: NGOs are filing these affidavits. Not a single person has come forward and said that they suffered due to Aadhaar.
  • Chandrachud, J: Economic and social guarantee is not antithesis to political guarantee. Can’t forgo of political liberty for the sake of economic and social justice. People died during Bengal famine due to lack of information. During the famine in Maharashtra in 1970s per capita income went lower than Sudan but people did not die because information was not cut off.
  • AG: Right of people to not die of hunger and have shelter prevails right to privacy.
  • Bhushan, J: All these rights do not trump right to privacy. They coexist.
  • AG: Nobody was coerced to get Aadhaar. It was voluntary between 2009-16.
  • Chandrachud, J: There were no safeguards during that time. It came only when the act was passed. People did not contemplate giving up their personal data for commercial purposes.
  • Sikri, J: People who enrolled that time (not for benefits or subsidies) say there was no informed consent that time.
  • AG: Aadhaar is facilitating Indian residents to get subsidies, benefits, scholarships etc. It’s an efficient, transparent delivery of services. It is in consonance with the directive principles of state policy. A handful of petitioners are challenging it.
  • AG: Aadhaar can help curb issues like money laundering, black money, etc.
  • Sikri, J: How is Employees pension scheme covered under Section 7? It is a person’s right to get pension.
  • AG: This was done to prevent fake Identity.
  • Chandrachud and Sikri, JJ: How does a pensioner who lives abroad with his children get pension since he will not be able to produce his Aadhaar card in person?
  • AG: Aadhaar is only required for residents. There must be some provision in the pension act to give pension to an NRI. Such a person will not be governed by Aadhaar act.
  • Chandrachud, J: Pension accounts are individual accounts. No question of impersonation. What if an old pensioner has dementia? His fingerprints might not work. He can’t keep running around banks for the purpose of authentication.
  • AG: There are exceptions for individuals whose fingerprints and Iris scans won’t work. For eg. People suffering from leprosy. Govt will not try to deprive someone of their rightful entitlement.
  • Chandrachud, J: Pension doesn’t come under “subsidies, benefits and services” under section 7. It is an entitlement.
  • AG: Pension is given out of the consolidated fund of India. Hence it’s covered.
  • Chandrachud, J:  We should acknowledge that there’s a problem of financial exclusion in our country. Cabinet secretary had agreed. To say that someone has not come to court therefore there’s no exclusion is wrong.
  • AG:
    • Mahatma Gandhi said that the world has enough for everyone’s needs but not everyone’s greed. Poverty is a huge problem and Aadhaar will be a step to solve it. There are 300 million poor people in India who deserve to live a life of dignity.  Please weigh the balance and see if these people want privacy or a life of dignity.
    • Aadhaar act also provides exceptions and backup authentication in various regulations during contingencies like power cut, Network connectivity, Biometrics not working etc.
    • Aadhaar’s results will show in a few years. We’ve already fixed problems like misappropriation, multiple identities. We are working towards making this project more effective.
    • Official identification is more than a convenience. It is a fundamental human right. It helps in economic development, participation in electoral process, and helps the govt in providing benefits to the people. It is a key enabler of other sustainable development goals.
    • Universal digital identity is becoming important around the world. The World Bank recently launched “identification for development” report.
  • Sikri, J: We agree that unique identification is important. But why not use a less intrusive means. Why is Aadhaar data stored in a centralized database over a long period of time? There’s a risk of metadata. Doctrine of proportionaliy is important here. In Singapore, people are supposed to have a unique identity. But that data is not stored with the government.
  • AG: Smart card was considered but it’ll not work in the Indian context. Duplication and aggregation of data is impossible with Aadhaar. Metadata is not stored by CIDR.
  • Chandrachud, J: But authentication records are stored.
  • AG: Let us give a power point presentation.
  • CJI: We’ll let you know.  We would like to have the presentation in word format.
  • Senior Advocate KV Vishwanathan (For petitioners): If there’s a presentation, then petitioners should be given a chance to cross examine.
  • Chandrachud, J: Questions can be given to the Bench.

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.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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The counsels appearing for various petitioners in the final hearing on the Aadhaar matter that has been going on since 17.01.2018, finally concluded their arguments on the 19th Day of the hearing and made way for the Attorney General KK Venugopal to begin his submissions on the 20th Day of the hearing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from Day 19 of the Aadhaar Hearing:

Submissions of Senior Advocate Meenakshi Arora:

  • Privacy judgment recognises that wherever there is data collection, it can result in surveillance.
  • In the cloak of mass surveillance, the democracy can be destroyed rather than being protected. This will result in the chilling effect due to 360° view on the individuals at all times.
  • Surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression.
  • Collection, aggregation and retention of personal data under Aadhaar has has no defined purpose and thus doesn’t meet the test of proportionality and strict necessity.
  • Lack of foreseeability and apprehension of abuse justifies intervention by the court in present case.
  • 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. In Aadhaar project, there are no judicial safeguards or effect remedies in case of breach.
  • Aadhaar infringes the right to dignity of the individual as it amounts to requiring a licence for exercising fundamental rights. Making Aadhaar sole means of identification is neither wise nor fair as primary objective of govt. schemes is to ensure that beneficiaries get the services instead of being excluded.

Submissions of Senior Advocate Sajan Poovayya:

  • A legislation may satisfy the tests of restrictions, however, looking from the lens of technology, the same legislation may prove to be intrusive.
  • Compelling state interests is ensuring the identity of individuals but 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.
  • In a democratic society, an individual must have the right to decide how much info he/she wants to submit.
  • In case of a chip being used, the chances of biometric failure is also reduced.
  • Even if we accept that biometric info is necessary, then what all biometric info must be made mandatory to be provided?
  • 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. Why should Aadhaar data be given less protection then when it contains more sensitive data?
  • 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.
  • In case of Aadhaar, there’s a centralised database unlike the 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.

Submissions of Senior Advocate Senior Advocate CU Singh:

  • India has acceded to the Convention on Rights of the Child and enacted Juvenile Justice Act and POCSA.
  • The legislations ensure the privacy of the child. Under law, a child has no right to give consent or to enter into a contract. Child cannot be deemed to have given consent under Aadhaar that too when it involves parting with data permanently.
  • Fundamental right to education cannot be subjected to production of Aadhaar.

Submissions of Senior Advocate Senior Advocate Sanjay Hegde (appearing for a petitioner having objections based on religious theology):

  • John Abraham was a student in a Mumbai school but was denied admission to Class 12 for non-production of Aadhaar.
  • 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. (Sikri, J finds the argument interesting. Says the Bench will consider it)

Submissions of Counsel Jayna Kothari (appearing for an organization that represents the rights of transgenders and sexual minorities):

  • Much has been discussed about Biometrics but not demographic data collected under the Aadhaar Act. Transgenders cannot get Aadhaar because they don’t have gender identity documents required by Aadhaar. Caste, religion is left out but not gender. It’s a violation of privacy and equality.

To read the highlights from the submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Hot Off The PressNews

On Days 17 and 18 of the Aadhaar hearing, the counsels appearing for the petitioners continued with their submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. The Bench has asked the petitioners to conclude their arguments on the next date of hearing.

Below are the highlights from Days 17 and 18 of the Aadhaar Hearing:

Submissions of Senior Advocate KV Viswanathan:

  • State doesn’t have the power to compel citizens to do particular acts except in certain defined circumstances.
  • Subjecting vast majority of people to a probabilistic method of authentication is of grave concern.
  • The presumption of criminality inherent in the collection of identity information is disproportionate and arbitrary.
  • In case of Aadhaar, biometric data of individuals is collected by enrollment agencies who are private entities. There is no judicial or independent oversight.
  • Aadhaar Act, 2016 is violative of privacy. Centralised storage of data in CIDR is disproportionate.
  • Absence of a right to access one’s own biometric data is violative of Art. 19 & 21 and represents state’s failure to fulfill its obligation of providing unimpeded access to the individuals’ own data.
  • The Act legitimises mass surveillance by State which is antithetical to the principles of democracy. It doesn’t define ‘national security’ and doesn’t require any ex-ante or ex-post independent oversight.
  • Section 7 is unconstitutional and violates Art. 14 of the Constitution as it has resulted in the exclusion of most marginalized sections of society. Gives the examples of rates of authentication failures in Rajasthan(37%) and Jharkhand (49%), citing Economic Survey of India.
  • The validity of the Act is to be judged not by its object but by its direct effect on the fundamental rights of the individuals.
  • Right to food is a fundamental right and mandatory authentication violates that right.
  • Govt. has failed to discharge its burden of proof to justify such infringement under Art. 21. It has also failed to show how Aadhaar has resulted in stopping the losses and caused significant savings.
  • Aadhaar based authentication, at best, helps only in identity fraud and none others.

Submissions of Senior Advocate Anand Grover:

  • Under the Aadhaar Act, unauthorised and excessive data is being collected. CIDR is protected but data is distributed at all sorts of locations which are not protected.
  • Govt. had claimed that all the data in SRDH had been destroyed. That cannot be done just be deleting it from one place. It is a complex process.
  • Authentications done in case of a tuberculosis control programme can disclose health info of a group of individuals within that region.
  • One necessarily cannot have a unique identity. A thumbprint can match with one person in a million. By using a thumb print and the iris both, one can narrow down but still, it will not be unique.
  • It was assumed that the iris cannot be changed. However, a study shows that within three years, quality of iris changes.
  • Contracts of UIDAI with foreign agencies for multi-modal biometric systems rendering it ‘insecure ab initio’. The Act specifies that no one else is supposed to have all these information. However, these agencies had access to all the data. There’s a complete failure to ensure the safety of data which is required under the law.
  • Because of the inherent personal nature of data, State has to ensure its protection. If it can’t ensure it, it cannot take such data.
  • Fingerprints can be duplicated very easily.
  • UIDAI has not stopped accepting authentication requests from unregistered devices.
  • All security measures are ad hoc. As when problem arises, measures are devised to cover it.

Submissions of Senior Advocate Meenakshi Arora:

  • Privacy judgment recognises that wherever there is data collection, it can result in surveillance.
  • In the cloak of mass surveillance, the democracy can be destroyed rather than being protected. This will result in the chilling effect due to 360° view on the individuals at all times.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Hot Off The PressNews

As the Aadhaar Hearing reached Day 16, Senior Advocate P. Chidamabaram concluded his arguments on the issue of Aadhaar Act, 2016 being introduced as a Money Bill before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. The most important take away from Day 16 hearing was that the Court scrapped the present deadline for linking Aadhaar stand extended till the final disposal of the matter.

Below are the highlights from Day 16 of the Aadhaar Hearing:

P. Chidambaram’s Submissions on Money Bill issue:

  • Speaker’s decision is not final. It is subject to judicial review.
  • (Reads S R Bommai v. Union of India) The satisfaction ofthe President mentioned in clause (1), shall be final and conclusive and shall notbe questioned in any court on any ground.
  • Any bill if passed in the guise of money bill strucks at the basic feature of Constitution i.e. federalism.
  • (Reads Raja Ram Pal v. Speaker) Validity of any proceeding in the Parliament on grounds of irregularity of procedure cannot be looked into by the court. However, illegality can be a ground for the courts to exercise judicial review. If the impugned procedure adopted in Parliament is illegal and unconstitutional, judicial review lies.
  • The question why it was termed as money bill was raised by MP Jairam Ramesh in the discussions. He had moved for amendments in the bill which were adopted in Rajya Sabha, however, these amendments were not considered by the Lok Sabha and it was passed in original.
  • The apparent object of the Aadhaar Bill is to make a law that will fit into Article 110(1)(c) & (g).
  • Chandrachud, J: If we cross the threshold of justiciability, which are the provisions are relatable to Art. 110?
  • Chidambaram: Question should be is there any provision in the Act which doesn’t fall under Ar. 110 (a) to (g). Because money bill can’t have any provision beyond (a) to (g). Provisions such as Section 57, 54, 23 go beyond the scope of Article 110. And hence it is not a money bill but merely a financial bill. It wasn’t a money bill when introduced or certified.
  • Chandrachud, J:  Does the entirety of the bill has to go or the portions can be severed-those provisions which fall under Art. 110?
  • Chidambaram: It will go in entirety. The provisions are not severable.
  • The provisions make it clear that it was not a money bill, then how could it have been passed as a money bill and the scrutiny of Rajya Sabha been bypassed. If this could slip through as a money bill, virtually any bill could slip as a money bill. It sets a very dangerous precedent. Money bill is an extremely narrow subset of financial bill. This bill goes far beyond the intended purpose of delivery of subsidies.

Submissions on issue of Aadhaar being made mandatory for Tatkal Passport:

  • Arvind Datar: Government can’t make Aadhaar mandatory in violation of SC order. (Further asks the court to consider extension of deadlines.)
  • AG KK Venugopal: There are other IDs eg. water bill, electeicity bill which can be taken. Aadhaar is only for expediting the procedure. Says that in case of passport under tatkal scheme, Aadhaar is required for out of turn consideration to expedite the process. (Requests that the extension of deadlines should not affect section 7- the subsidies.)

Hence, Court passed an interim order directing that the order passed on earlier occasion stands extended and that this extension would also cover the issue of passports.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin