Pachauri defamation suit: Court rejects interim gag order plea

The Patiala House court at Delhi has rejected R. K. Pachauri’s plea for an interim gag order against NDTV, Bennett Coleman and Co., and the India Today Group. The media houses had been made defendants in a defamation suit filed by him in 2016.

In 2015, an FIR had been filed against Pachauri by a woman employee of TERI (The Energy and Resources Institute, of which he was then the Chief) accusing him of sexual harassment. Following these allegations, several other women had spoken out about similar experiences while they had worked at the organization. The allegations and ongoing proceedings had received extensive coverage in the media.

Pachauri filed for defamation against multiple parties, including the media houses, one of the women who had spoken out, as well as her lawyer. He sought a gag order against the media houses, and damages of Rs. 1 Crore from the victim and her lawyer.

We have written previously about how suits such as these are in the nature of ‘SLAPP’ suits – Strategic Lawsuits Against Public Participation. These are cases where powerful individuals and corporations use litigation as a way of intimidating or silencing their critics. The defendants are usually media houses or individuals who are then forced to muster the resources to mount a legal defense. Even if they are able to secure a victory in Court, it is at the cost of a protracted and expensive process.

The court has now refused to grant an interim injunction against the media houses, noting the right of the public to be aware of the developments. It further noted that public figures can be held to a higher degree of scrutiny by the public. However, it has also held that further reportage must also carry Pachauri’s views, and indicate that the matter is still pending before the Court. The text of the order may be found here.

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SC Constitution Bench on Aadhaar – Final Hearing (Day X- Part II)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the first four days can be found here.

The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.

Mr. Sibal began by reiterating that his primary status is that of a citizen of India and not that of an Aadhaar cardholder and that there is no difficulty in connecting identity to status. He stated that the Aadhaar architecture is defective and even if it is made perfect, it still could not be made mandatory.

He then discussed the doctrine of unconstitutional conditions upheld in The Ahmedabad St. Xaviers College Society & Anr. Etc. v. State of Gujarat & Anr. and In Re: Kerala Education Bill v. Unknown and explained that according to the doctrine a state cannot make a benefit or privilege conditional upon an individual giving up his rights. He argued that a condition that precludes one from enjoying a benefit on the basis of an unreasonable classification is void.

Justice Chandrachud asked if it’s not reasonable for government to require proof of identity if entitlement derives from it. Mr. Sibal responded that the proof has to be linked to ones status, which entitles him to a benefit. Justice Chandrachud interjected that there has to be a minimal way to prove who you are to which Mr. Sibal responded that there can be different ways to establish ones identity and reiterated that Aadhaar does not establish ones status.

Chief Justice Dipak Misra clarified if Mr. Sibal’s submission was that one could not be asked to barter or surrender any of his fundamental rights in order to have access to another and Mr. Sibal responded in the affirmative.

Justice Chandrachud asked if the argument was that constitutional violation occurs when a person’s choice of identity is restricted to one option and Mr. Sibal agreed to it. Justice Chandrachud pointed out that the argument is premised on the notion that everyone has at least one form of identity. He asked if in the event one does not have any identity proof if the government program is enabling him to have one, would that make the program constitutional. Mr. Sibal responded that even in such a scenario, the government cannot make just one identity compulsory but can only prescribe a method by which he can get an identity.

Chief Justice Dipak Misra pointed out that the whole argument boils down to choice and Mr. Sibal agreed to it. He submitted that the point of Aadhaar is not to grant identity but to authenticate it.

He agreed with Justice Chandrachud when he said that the argument put forth is that citizens must have a choice in deciding how to establish their identity through a reasonable manner prescribed by law.

Mr. Sibal, next, read out notifications that make Aadhaar mandatory for child labor welfare schemes, bonded labor rehabilitation schemes, which are meant for the most marginalized and pointed out that it is them who will be excluded and asked “if this is not a denial of fundamental rights, then what is?”. Next, he referred to Minerva Mills Ltd. & Ors. v. Union of India to emphasize that state should not achieve its goals by abrogating fundamental rights.

Mr. Sibal then mentioned that Aadhaar does not stop pilferage or leakage. Justice Sikri interjected stating that even if Aadhaar fails to take care of all kinds of fraud that in itself would not make it unconstitutional. Mr. Sibal responded that it would not but would raise questions about its proportionality and reiterated that his argument is that the scheme is disproportionate.

He then submitted to the court a compilation repudiating all the factual claims made by the state.

Justice Sikri raised concerns regarding people possessing multiple passports and other IDs and proposed that Aadhaar can be used to curb this problem by replacing multiple IDs. Mr. Sibal rebutted that people have multiple Aadhaars as well and stated that it is an issue that has to be dealt by law. He argued that the fact that some people are breaking the law couldn’t be cited as a ground for justifying the state’s action of making Aadhaar mandatory.

Mr. Sibal concluded by stating that this is the most important case that has been dealt by the court since independence and stated that it is more important than ADM Jabalpur v. S. S. Shukla as it dealt with a constitutional provision which had a limited expanse whereas Aadhaar has unlimited expanse as it binds everyone including the ones who are yet to be born. He stated that this judgment would decide whether we would be living in a country with choice or in a country where the state is the arbiter of choice.

Senior Counsel Gopal Subramanium commenced his arguments.

Mr. Subramanium initiated his arguments by referring to Puttuswamy v. Union of India and stated that the core of the judgment was the idea of dignity. He submitted that despite the advancements in technology, the Constitution has to be abided by. He stated that according to the privacy judgment the intrusion into the right to privacy by the state has to be as minimalistic as possible.

He stated that identification itself is a pejorative act. He also submitted that the Act strikes at the accountability of the state as it disintermediates the state.

The hearing will continue on Thursday (15/02).

 

SC Constitution Bench on Aadhaar – Final Hearing (Day X- Part I)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the first four days can be found here.

The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.

Mr. Sibal commenced the proceedings by reading out the definition and purpose of biometric database from the biometric ID law of Israel. He focused on the aspect of consent in the law and pointed out the voluntary nature of the ID cards. He further pointed out that the law permits the usage of biometrics only for the purpose for which it is collected and that access to the database is also restricted for a specific purpose. He also indicated that there is no provision for collection of metadata in the Israeli law.

Next, he referred to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) and submitted that it is mandatory, lifelong, expansive, and that consent is illusory under it. He said that database should be used only for purposes authorized by law but also pointed out how the purpose of national security is often misused in India citing the targeting of NGOs in the name of national security as an example.

Mr. Sibal then submitted his proposition that information is power in today’s world where it is used for both commercial and non-commercial transactions. He referred to Paragraph 311 of Puttuswamy v. Union of India discussing the power of information and knowledge. Next, he read excerpts from the Harvard Business Review, which discussed the acquisition of WhatsApp by Facebook for an extremely high value and stated that these services are highly valued because of the information they provide. He then referred to the privacy judgment again, which stated that services such as Airbnb, Uber have only scattered information. He argued that information in silos is inconsequential whereas aggregated information poses a huge threat.

He stated that we cannot argue against the state insisting on national ID but we can ensure that our ID is neither in a public space nor in a centralized database. He further submitted that it is not problematic if the state asks for an ID card with biometrics as there is no metadata in it and reiterated that what is being challenged is the architecture and not the thought behind the Aadhaar. He stated that information regarding the opening of a bank account or a train journey is not relevant to public interest and there is no need for such information to be with the state. He highlighted this as the metadata problem. Referring to the incident where a woman had to deliver a baby outside the hospital for want of Aadhaar, he argued that medical information has no relevance to public interest.

He stated that his fundamental identity is that of a citizen of India and argued that how he proves his identity is his choice and the state can’t dictate how he should prove his citizenship.

Mr. Sibal, next, discussed the issue of mandatory nature of Aadhaar. He pointed out that despite the voluntary nature provided in Sec. 3 of the Aadhaar Act, it is actually mandatory. He then moved to Sec. 57 and pointed out that the section brings out the true intent of the Act to establish it as an exclusive proof of identification for purposes other than the ones stated in the object. He submitted that consent given is only for authentication. However when Aadhaar is made mandatory to get entitlements, there is no real purpose of consent.

Mr. Sibal, next, discussed the issue of concentration of information in a single entity. He stated that such concentration gives enormous powers to the entity and referred to relevant portions of the privacy judgment to highlight the issue.

Next, he discussed the issue of proportionality. He pointed out that for an statute to be proportional its objective would have to be taken into consideration and if the proposed policy was the least restrictive way to achieve that objective. Mr. Sibal submitted that, in the current case there was no nexus between Aadhaar and entitlement and therefore it was violative of the proportionality doctrine. He further stated that it was a citizens status from which entitlements were to flow and the state could not deny benefits only for the want of a certain proof of identity. He further pointed out that most the entitlements flow from part III of the Constitution and therefore the denial of it for want of a particular proof of identification would be denial of those fundamental rights.

Referring to Article 21, he stated that the right to livelihood  can be denied only by just and fair procedure of law and therefore denial of it merely for want of Aadhaar is neither just nor fair.

He concluded his argument on proportionality by stating that the procedure does not meet the test of Article 14 and therefore using only Aadhaar as proof of identity is unconstitutional and that it amounts to extinguishment of fundamental rights.

 

 

SC Constitution Bench on Aadhaar – Final Hearing (Day IX)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the first four days can be found here.

The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.

Mr. Sibal commenced the proceedings by remarking on the exclusion Aadhaar could lead to, referring to old age pension schemes and biometric failure.

Justice Chandrachud stated that exclusion could be caused due to several factors, including infrastructural issues.

The respondents interjected, stating that government documents proved that there were no exclusions taking place due to the infrastructure of the programme. The discussion then went on to alternate identity documents under the Aadhaar Act. The respondents, referring to Section 4,7 and 31 of the Act, stated that alternative means of authentication could be used, which proved that the infrastructure was not problematic.

Mr. Sibal then stated that a mere reading of the statute would not be enough, and that there were serious issues at stake. He also stated that the respondents’ interpretation of the provisions mentioned above was incorrect.

Following from which, the possibility of alternative authentication under Section 4(3) and 7 was discussed. Justice Chandrachud stated that Section 7 could be interpreted in 3 ways – as pertaining to authentication, proof of application and proof of possession. The Bench agreed with the respondents, stating that alternative of presenting an Aadhaar card would be sufficient for authentication. Mr. Sibal stated that this interpretation would only hold if the word ‘or’ was included.

The Bench also stated that the issue here did not relate to interpretation, but was relevant for the purpose of exclusion.

Mr. Sibal then went on to discuss the UK Identity Cards Act of 2006. He discussed the conservative parties’ arguments against the bill and the regulatory impact assessment conducted, which claimed that the Act would reduce identity fraud and effectively deal with illegal migrants. He stated that these arguments were similar to the points raised by the Indian state.

The discussion then moved on to social security cards and Aadhaar. Mr. Sibal stated that biometric information in several other jurisdictions was stored on a card and not a central depository. He stated that with a centralised system, Aadhaar functioned as ‘identity+’.

He then went on to discuss Section 7 and 57 of the Aadhaar Act, stating that in the absence of the former, the state could still use the latter to link other services to Aadhaar.

He also remarked on the fact that under the Act, alternate forms of identity were acceptable for enrolment but not for authentication.

The petitioners went on to discuss constitutionalism in the context of national identity. Justice Chandrachud stated that the Constitution allowed for multiple identities, in the form of gender, religion, etc.

He questioned whether there was parity in the way the Constitution envisaged identity, and the way in which Aadhaar did. Mr. Sibal stated that under Article 21, the Constitution would give a citizen the choice to establish their identity in multiple ways, which the Aadhaar programme would abrogate by mandating one form of identity.

Mr. Sibal reiterated that Israel had an optional identification system, through which citizens could choose to identify themselves for services.

The hearing will continue on Tuesday (13/2).

 

SC Constitution Bench on Aadhaar – Final Hearing (Day VIII)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the first four days can be found here.

The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.

Mr. Sibal started off the proceedings by clarifying his interpretation of Section 8(3)(c) of the Aadhaar Act. He also read out the definition of authentication as under Section 2 (c) of the Act.

He stated that authentication pertains to either democratic or biometric information. Referring to the previous day’s proceedings, he stated that these were the only forms of information acceptable and that there were no alternatives available. He stated that the provision was wrongly drafted.

Justice Bhushan stated that if Mr. Sibal’s interpretation was accurate, there would no need for this provision.

Mr. Sibal agreed, stating that the Aadhaar Act would evidently only pertain to Aadhaar and not other forms of identification. He read out the definition of demographic information, stating that it was broadly worded. He reiterated that there were no true alternatives and that the only alternatives were under the 3 heads that have already been mentioned.

The Bench stated that the mention of ‘alternatives’ could be for the purpose of double-checking, Mr. Sibal agreed.

Justice Chandrachud stated that identity information under Section 2(n) is defined in an inclusive sense and that it is not exhaustive. Mr. Sibal disagreed, stating that this would not be relevant in the context of Section 8(3)(c).

Moving on, Mr. Sibal stated that there was no centralised database of this nature in other jurisdictions. He also stated that Israel had a similar system, however, furnishing identity to avail of benefits was not mandatory under this system.

He then went on to discuss the Authentication Regulations, specifically Regulation 4.  He then discussed the different forms of authentication, including multi-factor authentication. He referred back to Section 8(3)(c), stating that these were the only forms of authentication available and that there were no alternatives available.

Further, he discussed the storage of fingerprints on centralised depositories, stating that in other jurisdictions, the fingerprint would be stored on the identity card itself and not in a database. He stated that the UK system which was discarded functioned similarly.

He then discussed Section 57 of the Aadhaar Act, and offered an alternative interpretation.

He stated that no one could question the use of a citizens Aadhaar because it is their identity, neither the state nor any body corporate or person.

The Bench implied that in this context, Aadhaar could be used for other purposes.

Justice Chandrachud questioned this interpretation. He also stated that the government seems to imply that private parties could also use Aadhaar. He clarified that Section 57, as per Mr. Sibal, was an option not a compulsion.

Mr. Sibal reiterated that the possible misuse could result in its validity. He clarified that he was not referring to the misuse by the state but was focussing on the nature of the digital world.

The focus then shifted to metadata, Mr. Sibal read out excerpts on the difference between data and metadata. He mentioned what metadata entails and referred to instances of civil rights organizations detailing possible human rights abuses.

Mr. Sibal then stated that the issue was not misuse by the state, rather that a citizen was being made vulnerable. He stated that vulnerability was the violation of Aadhaar.

He then referred to a document by the RBI, detailing issues with UIDAI system.

Justice Chandrachud clarified that the document was a staff paper, not a policy document.

Further on the issue of the safety of biometric information, Justice Chandrachud stated that any such system would be vulnerable to attacks and leakages.

Mr. Sibal stated that in the digital realm, a loss of data would be permanent.

He concluded the proceedings for the day by referring to the degree of control the retaining agency obtains over biometric information and the relevant legal safeguards. He also referred to the exclusionary nature of Aadhaar.

 

SC Constitution Bench on Aadhaar – Final Hearing (Day VII)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the first four days can be found here.

The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.

Senior Counsel Shyam Divan started off the day’s hearing by referring to the Shanti Devi case and other instances of exclusion caused by the Aadhaar programme. He stated that apart from exclusion, these were also relevant from the perspective of dignity and Article 21.

Justice Chandrachud referred back to fingerprints being an unsustainable form of biometric identification, stating that citizens suffering from leprosy, for instance, would not be able to avail of benefits.

Mr. Divan stated that similarly, there were several other people for whom biometric identification would not be suitable. He also stated that it was an aspect of bodily integrity.

In addition, he stated that exclusion, death and dignity were also relevant aspects.

Referring to the biometric system, he stated that beyond a certain point cannot detect duplication. He stated that its best use would be for identification purposes.

Justice Chandrachud stated that notwithstanding the Aadhaar programme, misuse cannot not be stopped even with the PDS system.

Mr. Divan stated that a person’s body for whatever reason could not be used as a marker against them and that Section 7 of the Aadhaar Act contained a coercive element.

Referring to an affidavit, he read out reports of citizens who had been adversely affected by the programme or were not familiar with what it entailed.

One such citizen did not know of the Aadhaar matter being sub-judice at the time of enrolment, and stated that he would not have enrolled otherwise. He stated that he wanted all his data to be deleted from the UIDAI system.

Mr. Divan further stated that requesting entities were retaining biometrics. Referring to another affidavit he stated that it was effortless to pick up biometrics from the system. He further stated that leakages could happen at any time without the UIDAI gaining knowledge of the same. In addition, he stated that private entities were not contractually obligated and had no fiduciary relationship with the UIDAI either.

Justice Chandrachud enquired if, for the purpose of authentication, the instrument in use had to be state machinery. He also questioned if there was any assurance when giving over biometric information to a private entity, that it would not be stored.

Mr. Divan agreed, stating that there should be implicit assurance that biometric information will not be stored.

He then went on to discuss the various methods in which biometric data could be hacked.

He then discussed fingerprints as a form of biometric identification and referred to instances of artificial fingerprints of operators being used.

He stated that fingerprints were easy to clone, and that it has reportedly been done before. In addition, authentication is done on a probabilistic system, which makes the system more problematic. For instance, cloned fingerprints could be used to uphold a bogus Aadhaar card. There have been reports of false fingerprint moulds being used to clone fingerprints of genuine operators. There were certain patches that could be used to bypass iris scan requirements too.

Moving on, he referred to instances where biometric information was rejected because of duplication. He referred to the figure of 6.23 crores, stating that it was highly unlikely that these citizens were trying to defraud the government. He also stated that as the database increases, there is a higher chance of duplication. This is not uncommon for a probabilistic system. He also stated that this was indicative of exclusion.

Moving on, he referred to school children being affected because of faulty biometric attendance systems. He stated that Aadhaar was not registering several students and that there was no statutory sanction for it.

Mr. Divan went on to discuss Salmond on bodily integrity. He stated that this went to the core of Article 21 and the relationship between citizens and the state.

He then went on to read out the pleadings.

He stated that the state could not compel an individual to pass his or her biometrics. He stated that it should be mandatory to get free and informed consent before collecting biometric information. He also stated that the above instances impinged on Article 21.

He then referred to the issue regarding personal autonomy of the body, questioning if one had to seek control of biometrics presented before the UIDAI at every juncture. He stated that in a digital world personal autonomy should also extend to biometric information.

He stated that the Aadhar programme essentially criminalizes the citizenry at large.

He concluded his arguments by discussing surveillance and the dominion of the state, referring to the domination the Indian state would have if the Aadhaar programme was allowed to roll out unimpeded.

Senior Counsel Kapil Sibal commenced his arguments.

He started off by referring to the matter as one with far reaching implications, stating that if this Act was to be upheld, every child would be born with an Aadhaar number. He also stated that there were several implications on the polity of this number.

He also stated that information was a powerful tool and that there was no tool more powerful than information.

He also stated that Aadhaar was tantamount to a Right to Information Act for the state, by which individuals were being made transparent and accountable, rather than the state.

He questioned how a choice of this nature could be imposed on someone, stating that members of Scheduled Tribes or Scheduled Castes for instance, could be severely disadvantaged if a point of service was not functional.

Further, he stated that the Aadhaar programme was procedurally unreasonable and lacked safeguards.

He moved on to discuss entitlements, and their relation to a status of an individual. Referring to a widower’s pension, he stated that an entitlement should only be related to the status of an individual and not their identity. He stated that identity was just a mode of proof and had nothing to do with one’s status. He questioned if there could be a condition imposed on a citizen to deny them an entitlement on the ground that they don’t have an Aadhaar card.

Further, he stated that any conditional approach with affiliation was not ideal.

He also mentioned that biometrics was a western concept, and is suitable for countries with fewer religious identities.

He moved on to discuss the issue of savings, stating that there were far more pressing issues to consider. He further stated that:

1) The digital world is far more susceptible to manipulation than the physical world.

2) No legislation can or should allow an individual’s personal data to be put at risk in the absence of a technology assured and safe environment.

3) Such endeavours of assurance would be impossible to obtain in the digital space.

4) Core biometric and demographic info of an individual once part of the digital world is irretrievable.

5) The digital world is a vehicle to benefit the information economy

6) The move from an information economy to creating an architecture or an information polity has far reaching consequences.

Mr. Sibal then read out sections of the Aadhaar Act, referring to the relevant provisions.

He also referred to Section 7 and 8 of the Act, stating that the difference between the two was that biometric information was not taken in every instance under Section 8.

He stated the Aadhaar programme would enable the creation of a monolith, which would lead to a system of no choices or preferences.

Mr. Sibal then went on to discuss the infrastructure of the Central Identities Data Repository (CDIR), stating that it was controlled by a foreign entity. He stated that the software was created by a foreign entity as well.

The discussion then moved on to requesting entities, Justice Chandrachud posed a question to Mr. Sibal, asking him who he considers to be requesting entities. Mr. Sibal read out the relevant provisions from the Authentication Regulations.

Mr. Sibal and the Bench then discussed Section 8(3)(c) of the Aadhaar Act and whether the ‘alternatives to submission of identity information’ affected the mandatory nature of Aadhar. Section 3(c) was also discussed in this context.

Moving on, Mr. Sibal focussed on the intended use of the Aadhaar programme, questioning how an Aadhaar number could determine if someone was a terrorist or a money launderer. He also discussed metadata, while comparing it to data.

Mr. Sibal also questioned why Aadhaar was passed as a money bill.

Justice Chandrachud mentioned that money bills may pertain to the consolidated fund of India, which could explain its nexus with Aadhaar. Mr. Chidambaram stated that this would be taken up later.

Mr. Sibal then went on to discuss the ill-effects that the programme could have, and the power that one would have to give up to the state.

Justice Chandrachud stated that a possibility of misuse of power could be no ground for unconstitutionality.

Mr. Sibal responded, stating that it wasn’t a question and that misuse was a certainty in the field of information technology.

 

SC Constitution Bench on Aadhaar – Final Hearing (Day VI – Part II)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the first four days can be found on the following links – IIIIIIIV and V.

The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.

Mr. Divan went on to discuss extracts on constitutionalism and the rule of law. Referring to the landmark judgment of Keshavnanda Bharati vs. State of Kerala, he stated that the rule of law cannot be abrogated.

He discussed the concept of fundamental rights being inalienable natural rights, which wouldn’t just amount to ornamental rights.

He then went on to discuss the concept of limited government qua the citizenry as a whole.

Referring to the Preamble of the Constitution, he stated that it was enough to prove that one cannot store, track and keep away information and any such initiative would be out of line with the preamble.

Justice Chandrachud interjected stating that moving beyond privacy, financial exclusion as an issue should also be focussed on. Mr. Divan stated that the other counsel would address that issue.

He then handed over an affidavit, referring to the lack of internet access in most parts of the country and how that would be inconvenient for the Aadhaar programme.

Mr. Divan then went on to discuss the quality of the centralised, drawing attention to the fact that 49,000 enrollers have been blacklisted.

He then went on to read excerpts on constitutionalism from Justice Puttaswamy vs. Union of India and from Nandini Sundar vs. State of Chhattisgarh.

Further, he discussed the issue of constitutional governance, reading out a statement published by the President of India. The excerpt focussed on trust as a necessary component of constitutional governance.

Following from which, he stated that the state seemingly had no trust in the citizenry, and believed that unless biometric information was given over we would be a ‘nation of scoundrels’.

He stated that several aspects of the Aadhaar programme were less than ideal from a ‘rule of law’ perspective. First, there was no mention of biometrics in the administrative notification. Second, they did not assume any responsibility with regard to the biometric data collection process. Third, they foisted responsibility on to registrars who did not have any administrative power.

Mr. Divan then stated that the UIDAI had ignored the Parliamentary Standing Committee Report’s recommendations.

He also stated that by creating an aura of impending necessity, enrollers were incentivised to increase the number of enrolments. In addition, he referred to how the system enabled the profiling of citizens.

He reiterated the point that a series of orders have been passed by the Supreme Court, which would invalidate the mandating of Aadhaar and questioned whether these could be overridden.

He then went on to discuss the preamble of the Constitution and how a centralized database with sensitive information would not be supported, and how an electronic registry of this nature would be ultra vires Part III of the Constitution.

Further, he suggested that the Indian judiciary make efforts to be in line with the ECHRs judgments.

He stated that in a liberal democracy, an individual was entitled to fully develop his or her personality. Scholarships, pensions and statutory rations were all services that would enhance the development of a citizen’s identity. He further stated these services could not be made conditional or bartered away.

Further, on the point of democracy and constitutionalism, Mr. Divan stated that democracy depends on faith in the people and faith in people’s decision. The fact that a citizen could do something in their space without the state knowing is a part of constitutional values.

On the issue of good governance, he stated that people must be given the choice to identify themselves with regard to the private and the state.

Referring to an affidavit, he detailed the justifications for Aadhaar.

First, Aadhaar was believed to give millions of Indians an identity and second, it would also lead to savings, by plugging leakages and avoiding de-duplications.

He stated that these claims were not valid.

Mr. Divan stated that the Aadhaar system requires furnishing existing proof of address and proof of identity – in the form of either a voted ID card, NREGS or PDS, amongst others. In the absence of such proof, a 3rd party would have to introduce a citizen to the system.

Referring to statistics, he stated that roughly 2 lakhs (0.03%) enrolments were made through the introducer system. Following from which he stated that 0.03% of enrolments could not be a justification for rolling out a large identification system.

On the point of savings and welfare programmes, Mr. Divan referred to an affidavit, stating that the World Bank has claimed that Aadhaar has led to a savings of 11 billion dollars per annum. Following from which he mentioned that Paul Romer, the Chief Economist of the World Bank stepped down from his position stating that the data of the World Bank had no integrity.

He further stated that these specific World Bank references were proven incorrect, since the figure cited referred to the total transfer or total disbursal which amounted to Rs. 70,000 crores and did not refer to the total savings, as claimed.

Further, he cited statistics on savings under the MNREGA scheme, establishing that they were either inflated or incorrect.

Referring to an RTI response, Mr. Divan stated that there was no specific methodology utilised by the state to detect fraud.

The Chief Justice clarified whether Mr. Divan was stating that smaller public interest should give way to a larger public interest. Mr. Divan agreed, stating that the individual would become diminished otherwise, which should not be allowed for the sake of the larger public interest.

Lastly, he discussed to the LPG linking scheme and the savings accrued. He stated that the savings implied from Aadhaar linking were not accurate as there was a previous initiative to eliminate duplicates from the LPG scheme.