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

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, 2018 and concluded on May 10, 2018. Summaries of the arguments advanced in the previous hearings can be found here.

Senior counsel Gopal Subramaniam continued with his rejoinder.

He started off by discussing the concept of dignity, stating that it was not meant to be promoted since it was assured under the preamble. He stated that dignity is inbuilt and would not depend on the largesse of the state.

Referring to the Aadhaar notifications, he stated that if the purpose of these notifications was to benefit individuals, the state would have to create conditions to ‘flower the dignity’ of people.

Justice Sikri commented on the duty of the state to provide benefits, which would also be a part of dignity. He stated that this would not just be applicable in cases of deprivation under Article 21 and that it would be an affirmative action.

Mr. Subramaniam agreed, stating that it would be an affirmative action. Further, he stated that the Act would have to be scrutinized to decipher whether it was an enabler or whether it was passed under the guise of enablement.

He then stated that the notifications begin with a preamble, which refers to the guarantee of seamless delivery of services.

He then discussed alternate forms of identification, like ration cards, stating that existing forms of identification were not failing, and Aadhaar therefore did not have a purpose.

He referred to examples of women in Jharkhand who could not get services despite having ration cards, due to failed Aadhaar authentication.

He also discussed the Essential Commodities Act and the central governments obligation.

He also discussed the applicability of the test of the ‘true purpose of the law’.

Further, he discussed the lack of machineries that were set up under the Aadhaar programme, stating that Aadhaar did not serve any special purpose since existing machineries were used to deliver services.

Mr. Subramaniam then went on to discuss the asymmetry of power under Section 7 of the Aadhaar Act.

He also stated that the Act was not enacted for a proper purpose. Further, he stated that the first step of legitimate aim was ‘proper purpose’. He also stated that it could only be justified if the right was preserved and that dignity and autonomy were not preserved under Section 7 of the Act.

Further on the issue of ‘proper purpose’, referring to the idea of ‘Socratic contestation’, he stated that a claim to a proper purpose would not qualify as a proper purpose.

Mr. Subramaniam then discussed the three letters of authentication. He stated that authentication was at the heart of the act and that failure of authentication was a ground for denial.  In relation to requesting entities, he discussed their lack of accountability under the law.

Further, he discussed the GDPR and the change in protocol. He also discussed the concerns about privacy of communication and not the privacy of individuals.

Further, he stated that there weren’t any other jurisdictions where the state could take all of its citizens data.

He also stated that declaration of human rights was necessary for this act. Further, he stated that the Act reduced people to numbers and also discussed the perils of using probabilistic algorithms.

Referring to Section 7 of the Act, he discussed ‘grants, subsidies, benefits’ as expressions of condescension.

Mr. Subramaniam further discussed the ‘power’ under the Act, stating that the power enables the collection of information.

He discussed the test in constitutional law, which was to question whether the state should logically be the holder of such information.

Further, he stated that if knowledge was power, giving information to the state would signal a ceding of power.

Justice Chandrachud commented on the nature of subsidies, to which Mr. Subramaniam stated that subsidy was provided at different levels of government.

Mr. Subramaniam then discussed Section 7 and stated that under it, strict rights were being bracketed. He further stated that it was not merely a segregation and that entitlements were being treated like grants.

On this Justice Chandrachud stated that wage payment was a benefit, to which Mr. Subramaniam responded, stating that wage payment would be a vested right.

He further discussed the Courts guidelines for rehabilitation laid down in 1982 in relation to bonded labourers, before deciding whether to rehabilitate or free them.

In this regard, he also discussed the incarceration of mentally ill citizens and the writs of mandamus issued to the Union.

Moving on, Mr. Subramaniam discussed census data and its use at federal and state levels. He stated that states had policies in regard to requesting data from the central planning commission.

He further stated that census data was a way of social mobilization, and that there was pre-existing data owing to the census.

He then discussed the concepts of horizontal protection and vertical protection, stating that the former was more important in the given instance.

Further, he discussed bodily integrity and autonomy as important considerations.

He also stated that ultimately, the fundamental freedoms in India must never be compared with the 4th Amendment under the United States constitution.  He also stated that the Indian constitution was a living document.

On the issue of Section 7, Justice Chandrachud stated that it is an enabling provision and not a mandate. He stated that it enabled the government to impose a mandate, the difference arising from may/shall.

Further, it was stated that these rights could not be ‘wielded down’. He also stated that there was no common denominator and rights could not be subsidies. Further on the issue of Part 3, he stated that the rights conduced to dignity.

Mr. Subramaniam then discussed identities and the dissolution of some kinds of identities.

He stated that if an act like manual scavenging was antithetical to the soul then he would want it destigmatized with the march of time. He further discussed how certain actions were akin to unmaking the dignity of people.

On the issue of fake profiles, he stated that it was not a matter of sticking up for fake profiles, but rather a matter of sticking up for better administration.

On the alleged voluntary nature of Aadhaar, he questioned how people could be asked to contract when they were not even under the capacity to contract.

Further, on the ‘legitimate aim’ of Aadhaar, he stated that collecting massive amounts of information would not satisfy this aim. He stated that the means used had to be adept and valid.

He also discussed the issue of two competing rights, which had to be balanced. In this regard, he discussed the concepts of freedom, autonomy, self-preservation and self-actualization. He also stated that the act of balancing had a direct correlation with seminal values and objectively protected values.

Mr. Subramaniam then stated that no contemporary studies on Aadhaar had taken place, the last one having been conducted a decade ago.

He then went on to read excerpts on an individual’s inalienable rights, stating that an individual should not be required to give up their rights.

Further, he stated that the procedure established by law had to be just, fair and reasonable.

On the Aadhaar project, he stated that there wasn’t merely a possibility of abuse, but that the Act postulated compelled behaviour.

He stated that the primary focus was that the judiciary had an obligation to protect fundamental rights.

Referring to the Constitution, he stated that it was a living document and should be seen as transformative. Further, he discussed parliamentary supremacy and the capacity to refuse. He stated that autonomy and integrity were intertwined in the capacity to refuse and if the capacity was obliterated, then the autonomy would also follow suit.

Mr. Subramaniam further discussed relief, stating that the petitioners would want the data stored to be taken down. He also stated that the Bench should exercise its powers under Article 32 and also rely on the case of Nilabati Behera.

Lastly, he stated that the propensity of information was an important consideration as well.

Next, senior counsel Anand Grover commenced with his rejoinder. He was brief, stating that none of the contentions of breaches of security had been dealt with and that privacy should not lose its character.

Next, senior counsel Arvind Datar commenced with his rejoinder.

He started off by stating that ‘pith and substance’ had no application to the legitimacy of an article and would not be applicable to a money bill.

Further, he discussed the difference between a money bill and a financial bill, stating that consolidated fund matters would be covered by financial bills.

He also discussed Article 117(1) in this context.

He stated that the Aadhaar Act could not have been passed as a financial bill.

Further, he discussed the doctrine of severability and whether certain portions of the Aadhaar Act could be removed.

He stated that the doctrine of severability could only apply if a statute was valid and certain portions are invalid. He stated that if the rest of the statute ‘made sense’ and was valid, it could be retained. However, in this instance, the statute itself was invalid, and relying on the Kihoto Hollohan case, he stated that a statute that was fatal at its inception could not be saved.

Mr. Datar also discussed the Mangalore Ganesh Beedi works case and subsequently Article 110(b) of the constitution.

Further, he discussed the issue of linking bank accounts to Aadhaar.

He stated that millions of bank accounts have already linked to Aadhaar and that permanent linking did not seem to serve a purpose and that accounts should be delinked once determination was over.

Next, senior counsel P.C. Chidambaram commenced his rejoinder. He discussed the issue of the Aadhaar Act being passed as a money bill.

He started off by discussing the interpretation of ‘only’ under Article 110(1), and went on to discuss how clause (g) must be read narrowly.

Lastly, he stated that a non-money bill being passed as a money bill would effectively limit the power of the Parliament, by disallowing review, which should not be condoned by the Court. He also stated that the doctrine of severability would not hold credence if the legislature was unconstitutional to begin with. Further, he discussed how the doctrine of pith and substance would not be applicable to bills passed under Article 110.

Next, senior counsel K.V. Viswanathan commenced his rejoinder. He discussed the theories of proportionality and balancing of rights. He stated that the balancing of rights proposition by the respondents was incorrect, and that fundamental rights would not survive. Further he discussed exception handling and the problem with making vested rights conditional on Section 7 of the Act. He also stated that citizens should not have to face the burden brought about by systems for ‘targeted and efficient delivery’.

Lastly, senior counsel P.V. Surendranath discussed the problem with excessive delegation.

The hearing concluded on the 10th of May and the matter is now reserved for judgment.

 

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

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 in the previous hearings can be found here.

Senior Counsel Shyam Divan continued with his rejoinder. He started off by addressing the UIDAI’s responses to the questions posed by the petitioners.

In this regard, he discussed the architecture of the Aadhaar programme, along with inorganic seeding. He discussed how entities of the Aadhaar architecture allowed traceability and location tracking. He also discussed flawed statistics that were released on the rate of authentication success.

Mr. Divan then referred to a 2009 order, which did not mention that biometric authentication would be a part of the Aadhaar programme.

He then discussed the unauthorized collection of data by the UIDAI, stating that biometric information was collected without any statutory authority. He stated that India was not a monarchy and unauthorized collection of this nature should not be permitted.

He also stated that the UIDAI had no way of verifying the accuracy of the information on its database . He also stated that there was no contractual obligation created between UIDAI and its agents. He then went on to refer to a hypothetical log of authentication, that was created to illustrate the point that biometric authentication would allow for tracking and profiling.

Mr. Divan then went on to discuss the World Bank report and the high level advisory committee. He stated that the report, which discussed the benefits of Aadhaar, stating that it was not as impartial as it seemed to be, and likened it to a ‘sales pitch’. He also stated that there were no people with expertise in civil liberties and privacy on that committee.

He then went on to discuss Section 59 of the Aadhaar Act and the validity of biometric information that was collected prior to the Aadhaar Act.

He also stated that under the Aadhaar programme, citizens were being compelled to ‘voluntarily’ sign up.

He stated that certain schemes should be excluded from the purview of Aadhaar, these included schemes that affected vulnerable portions of society. He stated that women who were rescued from trafficking, bonded labourers, children, those who were in need of rehabilitation and others, should be excluded.

In this regard, he stated that Sarva Shiksha Abhiyan should not require Aadhaar authentication.

Mr. Divan stated that the principle of non-retrogression would apply, and that it would not be possible to go backwards in human rights law.

He then questioned how Supreme Court orders could be overridden by economic advisers in the ministry.

He went on to refer to the August and October 2015 orders, stating that Aadhaar was declared voluntary in those orders and that it could not be declared mandatory till the Supreme Court decided it was.

He then went on to discuss the powers under Articles 226 and 227 of the Constitution, stating that the ‘magic’ lied in the fact that bureaucrats could not override independent judicial power and that their actions would be checked under the law.

He also discussed the issue of the Act being passed as a money bill.

Moving on, he referred to the an ‘intricate scheme of defences’ in the Constitution, and that there was a whole set of defences, the last being the court.

Referring to the ‘second bulwark’, he stated that Article 111 of the Constitution would also not be applicable if the Aadhaar Act was upheld as a money bill.

He then discussed the importance of protecting demographic information, and the ‘fatal’ features of the Aadhaar programme.

Lastly, he questioned if the Aadhaar programme could stand the first five words of the Constitution – ‘We the people of India’.

Senior Counsel Gopal Subramaniam continued with his rejoinder. He started off by discussing acts of malfeasance and misfeasance.

He referred to Section 33 of the Aadhaar Act, stating that there was a complete giveaway of information, including identity information or authentication records.

He questioned the information that was made available to the state, stating that there seemed to be no nexus between the requirement of knowledge and the delivery of services. He stated that this went against Puttaswamy vs. Union of India.

He stated that the collection of data of over a billion people was not fool-proof, referring to the Cambridge Analytica case.

Further, he questioned what happens when the legislature was not an enabler, stating that the law would be disempowering, if not empowering.

Referring to the Facebook data leak, he stated that this leak was thought to affect elections and political power dynamics in Singapore.

Further, he stated that the issue was not merely multiple classes of people that were, but also the price of revelation.

He also discussed the issue of legislative competence and voidness.

Lastly, he discussed the case of West Ramnad and the ability of the state to enact laws retrospectively.

He stated that the sine qua non for retrospective validation was the prior existence of a statute, which was not the case with Aadhaar.

The hearing will continue on the 10th of May.

Launching our Mapping Report on ‘Hate Speech Laws in India’

We are launching our report on hate speech laws in India. This report maps criminal laws and procedural laws, along with medium-specific laws used by the state to regulate hate speech.

This report was launched last week at a panel on ‘Harmful Speech in India’, as a part of UNESCOs World Press Freedom Day. The panel was comprised of Pamela Philipose, Aakar Patel, Chinmayi Arun and Sukumar Muralidharan. The panelists discussed the state of harmful speech in the country and regulatory issues arising from the proliferation of hate speech.

We hope that this report can serve as a basis for further research on hate speech in India, and can serve as a resource for practicing lawyers, journalists and activists.

We would appreciate any feedback, please feel free to leave a comment or to write to us.

The report can be found here.

 

 

 

 

SC Constitution Bench on Aadhaar – Final Hearing (Day XIX) (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 in the previous hearings can be found here.

The next petitioners were represented by Senior Counsel PV Surendranath.
He stated that there was a direct impact of violation caused by the Aadhaar programme. He stated that there had been a direct impact of violation of Article 21 and that the Aadhaar programme would also not pass the test of rationality.
He also stated that after biometric and democratic data had been divulged, a citizen would have no control over their data and it would amount to a unilateral decision. He also commented on the irrationality and the unreliability of the concept of the programme.
He then moved on to discuss the reliability of fingerprints, referring to the FBI’s 2004 statement (relating to Brandon Mayfield).
Mr. Surendranath concluded his submission and Senior Counsel C.U. Singh commenced with his submission.
He discussed the Convention on the Rights of Children and child rights in relation to Aadhaar. He discussed Article 8 and 13 of the Convention. He also discussed the Juvenile Justice Act of 2015 in this regard. He stated that the rights of children to privacy are expressly protected under the Protection of Children from Sexual Offences Act and the Juvenile Justice Act.
Mr. Surendranath went on to read out relevant provisions of the Juvenile Justice Act. Further he stated that a child in India had no right to give consent and right to enter into a contract. In this regard, he referred to relevant provisions of the Indian Contract Act. He questioned how a child could be made subject to a permanent system of Aadhaar if they could not operate their own bank account.
Further, he stated that mandating Aadhaar in certain aspects was also affecting a ‘fundamental right to education’ and subjecting it to parliamentary legislation. All these aspects were taking away the rights of children.
Referring to the Justice Kishan Kaul’s judgment in Puttaswamy, he briefly discussed privacy qua the rights of the child.
Moving on, he discussed the Aadhaar Act. He discussed exclusion under Section 7 of the Aadhaar Act and stated that the Act had become a tool for exclusion rather than a tool for inclusion.
On the issue of personal data and security breaches, he stated that the Courts intervention was called for. He also stated that alternatives to the current system should be considered, specifically implementations which are necessary and less intrusive.
Further he discussed mid-day meal schemes and the requirement of Aadhaar and also how the programme affects the most vulnerable sections of the society.
Mr. Surendranath concluded his submission and Senior Counsel Sanjay Hegde commenced with his submission.
He stated that the mandatory nature of Aadhaar went against certain religious beliefs. He commented on the concept of a ‘conscientious objector’ and the right of conscience. He also stated that the petitioner could not conscientiously be asked to follow their religious faith and apply to Aadhaar, since it wasn’t in line with their faith.
Justice Chandrachud questioned if a persons conscience could disallow them from enrolling for income tax.
In response, the Counsel commented on the requirement of helmets for Sikhs.
Chief Justice Dipak Misra referred to Article 25 stating that the application would be independent of our individual concerns.
Further, Mr. Hegde commented on ‘conscientious objection’ in the context of the World Wars and exclusion from military service.
Justice Sikri stated that the Bench would consider the argument.
Senior Counsel Hegde concluded his submission and Counsel Jayna Kothari commenced her submission.
 
She stated that her submission would discuss how the rights of people from the transgender community would be affected by Aadhaar.
She stated that the definition of biometric information in the Aadhaar Act could be amended and that requirements like DNA could also be introduced someday. She stated that demographic information includes information relating to name, date of birth, etc. She stated that while the Aadhaar enrolment form had provisions for identifying as transgender, the PAN card didn’t and other forms of identification did not. This would create issues for filing income tax returns.
She also stated that there was no uniformity in gender identity and that there would not be similar identities across systems.
Further, she stated that to identify as transgender under the Aadhaar Act, a citizen would have to produce other documents in support. She stated that to be able to identify as transgender, certain identification systems also required transpeople to have first undergone medical reassignment surgery. This would be disadvantageous for transpeople who would choose to not undergo gender reassignment surgery and also those who were in the process. She stated that a right to gender identity was guaranteed under Article 21 of the Constitution.
She also stated that tying the grant of benefits to Aadhaar would also imply that people may have to reveal their gender identity’s by force. Referring to the Puttaswamy judgment, she stated that there were some markers which should be specifically prohibited, like caste and also gender identity. She stated that this mandatory requirement would possibly threaten the lives of trans people and open them to abuse. She referred to Section 377 of the IPC and the Telangana Eunuchs Act in this regard.
Referring to a decision by the Supreme Court of Phillipines, she referred to the national computerised identification system which was similar to Aadhaar and was attempted to be instituted in the ‘90s. However, the Supreme Court invalidated the programme on the grounds of privacy.
Lastly, she also commented on the requirement of Aadhaar for HIV treatment.
She concluded her submission and Counsel Prasanth Sugathan commenced his submission.
He discussed the requirement of Aadhaar and how the cumbersome procedure affected those who were already in a disadvantaged position. He also commented on how the Aadhaar programme affected the financial services available to NRI’s.
Mr. Sugathan concluded his submission and Ms. N.S. Nappinai commenced her submission.
She stated that the entire Aadhaar scheme was being put forward on the scheme of national security and referred to the Talinn manual in this regard.
She referred to the concept of national security, and life and liberty in Romania and Canada. She also discussed the kill switch argument being used with regard to internal threat. She also stated that digital ghettoisation was taking place.
The petitioners have concluded with their submissions and the respondents will commence on the 21st of March, 2018.

SC Constitution Bench on Aadhaar – Final Hearing (Day XIX) (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 in the previous hearings can be found here.

Senior Counsel Meenakshi Arora continued with her submissions.
She stated that the collection of data under the Aadhaar project was grossly disproportionate. She also stated that the  collection and retention of data should be subject to purpose limitation, in the absence of which mass surveillance and profiling could become prevalent.
She referred to the case of Digital Rights vs. Ireland discussing the effect this judgment had on the retention of metadata.
She stated that the the law required the service provider to retain the communication and not the content of the communication. She also referred to excerpts wherein the data retained made it possible to identify users and communication equipment. In addition she stated that the data taken as a whole allowed precise identification, including daily movements and other sensitive information. She stated that if a citizen had the ‘feeling’ that their private lives were likely to be surveilled, it should be enough of a concern.
Moving on, Ms. Arora discussed the difference between general warrants and specific warrants. She stated that the Aadhaar Act was in the nature of a general warrant, and not a specific warrant. Referring to Justice Nariman judgment in Puttaswamy vs. Union of India, she stated that general warrants were considered to be ‘bad’ and that ideally a warrant should be specific in nature.
She then discussed the cases Szabo vs. Hungary and a case by the German Federal Court. Referring to the latter, she stated that the German Court held that 6 months was too long for data to be stored, comparing it to Indian standard of 7 years.
Referring to a judgment by the German Constitutional Court, she stated that storing communication without cause would create the apprehension of being watched.
She then moved on to discuss a United Nations General Assembly resolutions (16th November, 2016), stating that while metadata could provide benefits, certain kind of metadata could reveal sensitive information.
She then discussed Puttuswamy vs. Union of India, stating that there was no place for a ‘big brother’ in this democracy.  Referring to an affidavit filed, she stated that surveillance by the CIDR with the use of aggregated data from the Aadhaar project was a possibility.
She stated that this form of surveillance could only take place in a state that does not follow the law. She stated that laws should be formulated in a way to ensure that those elected in the future cannot abuse their power. She stated that protection was not meant to be immediate, but long lasting.
She also stated that the collection, aggregation and retention of data on a mass scale had no purpose for Aadhaar. This conclusion could also be reached at by applying the general/specific warrant test and the proportionality test.
She questioned the validity of a national legislation which covered, in a general manner, all subscribers as generalised users. She stated that there was no stated objective for the same and no strict necessity either. Further on the issue of necessity and proportionality, she questioned if it was proportionate to link a large number of services to Aadhaar.
Referring to Section 7 of the Act, Ms. Arora discussed the proviso with regard to alternate means of identification. She questioned why alternate forms of identification would not be good enough for benefits and subsidies, since they were good enough to procure Aadhaar identification.
Chief Justice Misra commented on the interpretation of these provisions, stating that they the petitioners were ‘reading up’ the provision.
Ms. Arora went on to discuss the Canara Bank judgment. She also discussed the absence of data protection and security provisions and its effects on the Aadhaar project. Referring to a UN document, she stated that individuals often do not provide explicit and informed consent and that sharing of sensitive data had become increasingly common.
Further, she went on to discuss judicial supervision in the context of the Act and the ‘political nature of the authorisation’.
She also discussed the chilling effect the Aadhaar project had had on the exercise of fundamental rights. Further, she discussed Bentham’s Panopticon model and the nature of a surveillance state. She also referred to the creation of an asymmetry of knowledge, and the state aiding in the creation of docile bodies.
Lastly, she stated that the Aadhaar project infringed on the right to dignity of an individual and that the Magna Carta recognised that every human being was entitled to an identity.  She stated that in this system, citizens did not have control over their own identities. She commented on Aadhaar being the sole means of identification and stated that it altered the relationship between the state and its subject.
Senior Counsel Meenakshi Arora concluded her arguments and Senior Counsel Sajan Poovayya commenced his arguments.
He started off by referring to a 1983 German federal court case on data submission and discussed ‘compelling state interest’ in this regard. He stated that when the same legislation was in the domain of ‘brick and mortar’ it would be viewed differently than a legislation about different technology.
He then discussed the shift in technology over decades and the perils of the Aadhaar Act.  He stated that technology disrupts itself often, and new technology comes into force. He stated that even assuming that there was a compelling state interest in Aadhaar, the interest would be that the resident has to receive subsidies. He stated that the there was no need for a precise identity for the use of subsidies from consolidated funds. Lastly, he stated that the interest had to be achieved in the least intrusive manner.
He briefly discussed the case of Chintaman Rao.
The discussion then moved on to biometric information. He stated that assuming that biometrics were a good form of identification, it would still be problematic for the Aadhaar programme because the best technology is meant to be the least prescriptive. Drawing on the instance of a credit card, he stated that credit card chips can store data in a much more credible way and is a cost-efficient alternative as well.
He stated that similar to information stored on a credit card chip, biometric information could be stored on an external chip as well. At the time of availing subsidies and benefits, these cards could be produced and the person could place their thumb print and verify through the chip. He stated that that seemed to be the least intrusive method, since personal information would remain with the individual and not in a centralized database. Referring to the 9 judge bench decision of Puttaswamy vs. Union of India, he stated that informational self determination was an important consideration and that the use would have to be limited to a specific purpose for self determination to be intact.
Further on this issue, he stated that the test was not possibility of misuse, rather the consideration was seeking lesser intrusive ways to collect information.
He referred to the failure rates of the Aadhaar programme, stating that the probability test would become much more certain when only the thumb prints were on the card.
He moved on to his second submission, questioning if biometric methodology was the only methodology in use. He stated that certain forms of biometric identification had been long in use, and that there seemed to be limited compelling state interest to mandate biometric identification.
He also stated that under Section 57, what construes biometric data can be amended too. Further he stated that seemingly ordinary practices could become intrusive in the technological world. A legislature could permit more intrusive ways of identification, Mr. Poovayya illustrated the case of DNA or bone marrow being used in the future.
Referring back to a German decision from 1983, he stated that the speed of computation technology has grown exponentially from millions to billions. Citing this case, he explained the difference between personal data being collected as opposed to statistical data.
He also stated that the Aadhaar programme was not the same as the census, since the Parliament would only allow government servants to deal with data. He questioned why personal data in the Aadhaar programme was not afforded this kind of protection.
Lastly, he also discussed handing over sensitive personal data to software companies and data retention policies.

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

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 in the previous hearings can be found here.

Senior Counsel K.V. Viswanathan continued with his submissions.
He discussed PDS irregularities related to Aadhaar.
He also discussed the case of Marper, citing to establish that several misleading statistics had been used by the parties.  He stated that several statistics were considered and rejected by the Court. Similarly, he urged the Bench to consider the statistics on Aadhaar’s success which would be presented by the respondents.
He then went on to discuss the case of Peck vs. The United Kingdom. He stated that the examination of alternate means in this case was mandatory. He also stated that the court noted that the council had other options available to it.
Mr. Viswanathan also discussed ‘excessive delegation’ under the Aadhaar Act. In this regard he stated that the Act does not lay down any guidelines and there was no right of hearing against omission of Aadhaar numbers, in addition to other such aspects.
Mr. Viswanathan concluded his arguments and Senior Counsel Anand Grover commenced with his submission.
His first submission was that the whole architecture of Aadhaar was beyond the Act since data was allowed to move outside the CIDR.
He also commented on the private nature of enrolling agencies and other related bodies, as has been stressed on earlier in the hearings.
He stated that all these factors could contribute to a serious breach of privacy.
Moving on, he discussed the Aadhaar Act and what was allowed to be collected under the Act. While the Act allows for the collection of biometric demographics, the data collected in real time went beyond just the demographics. Mr. Grover stated that often factors like caste were collected as well. He stated that the data was  segregated and sent to the state and the CIDR separately. He also stated that the UIDAI had a proactive role in this form of data collection.
On the issue of data destruction, Mr. Grover stated that the hard disk and the server would have to be destroyed to ensure the complete removal of data, implying that the data removal technique in use now was technique.
He also stated that privacy had to be preserved and that data leakages into the public domain would have to be prevented as well.
Referring to the state resident data hubs, he stated that biometric data was made available for private and unregulated use as well. Further, he stated that registrars retain biometric information as well and that the CIDR would also be absolved of any liability.
Reiterating the issue of collecting details about caste, he stated that state resident data hubs could collect and use such data for their own analyses, as has happened previously in Maharashtra.
He stated that permanent deletion of data was not a simple process and that the union should have to furnish evidence of such deletion.
He also stated that the architecture of the CIDR was such that unauthorised entities had easy access as well.
Mr. Grover then went on to discuss the inaccurate nature of fingerprints and iris scans.

Further on the Aadhaar Act he stated that no one could file complaints under the Act and that the biometric system allowed for exclusion. He reiterated that private agencies had access to personal information of third parties
On the issue of data retention, he stated that there was a complete failure to ensure the security of data. He also stated that data retained its private nature at all stages.
On the issue of authentication, he stated that authentication was only meant to be conducted through registered devices, however, unregistered devices have also reportedly been used.

Mr. Grover further discussed the Aadhaar Act, focussing on Section 23(2)(m) and data security regulations.
He discussed the likelihood of how e-governance systems would function and the effects on essential supplies. Using the example of electricity supplies, he stated that e-governance systems often categorised areas and that rural areas could be on the lowest rung of the categorisation. This would imply that rural areas would receive lesser resources.
The Bench questioned whether Mr. Grover was referring to a system of categorisation or prioritisation.
Mr. Grover stated that the system took the form of prioritisation.
He stated that the determination of such matters would then be carried out by technologically driven code, and that it was impossible to understand the technology. He questioned how it could be determined, stating that it could amount to a violation of rights by virtue of use of technology. He stated that laws are written into self-executing codes and Aadhaar data would never be neutral to all citizens. He stated that even if there was no active discrimination, there could still be differential treatment by virtue of the technology.
He remarked on the excessive delegation of the Aadhaar Act and the interim orders passed in 2015, stating that the executive could not override the Court’s orders.
On the issue of privacy, he commented on purpose specific use limitations and discussed the PUCL guidelines and the case of United States vs. Resting House.
He stated that the Aadhaar Act had no safeguards and that prohibited acts were being carried out with impunity. He also stated that the UIDAI had facilitated data transfer in contravention of the Act. He also reiterated that the data could not be permanently destroyed. Lastly, he stated that a solution would be to carry out an audit of the Aadhaar project or prove that one had been carried out.
Mr. Grover concluded his arguments and Senior Counsel Meenakshi Arora commenced her submission.
She stated that her submission would look into 3 aspects. First, her submission would look into data collection, profiling and surveillance.  Next, she stated that dignity and identity were important aspects and could not be denied.
Referring to the judgment of Kharak Singh, she discussed physical individual surveillance, targeted surveillance and mass surveillance. On mass surveillance, she stated that other jurisdictions had also recognised the effects of mass surveillance. Relying on the judgment of Marper, she stated that it was not merely a matter of surveillance but also an apprehension of the fact that there could be future use of certain data.
Referring to an ECHR judgment, he stated that data was required to be destroyed and the concern was not with regard to real time surveillance. He also stated that data could be in the hands of authority that could have the propensity of using it and there could be an apprehension of use as well.
She stated that with reference to the linkage of Aadhaar, the Union had claimed that the law was to avoid all forms of  fraud, evasion, terrorism and that it was necessary for preventive measure. Ms. Arora also commented on the quality of the law.
Chief Justice Misra stated the Indian judiciary has not used the phrase ‘the quality of law’ since it brings morality into picture.
Justice Chandrachud commented that the ‘quality of law’ implied that the test of necessity, foreseeability and accessibility would apply.
The hearing will continue on the 20th of March (Tuesday).

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

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 in the previous hearings can be found here.

Mr. Viswanathan continued his arguments on the invalidity of Section 59 of the Aadhaar Act. He stated that there was no informed consent in instances of enrolment from 2009-2016 and several other procedural safeguards were lacking. He also stated that a ‘legislative declaration of facts is not beyond the scope of judicial scrutiny’. He relied on Indra Sawhney vs. Union of India, (2000) 1 SCC 168.

Justice Chandrachud questioned what the consequences of invalidating Section 59 would be, and further questioned if all data between 2009-16 would also stand invalidated as a result.

Mr. Viswanathan responded, stating that the data should stand invalidated and should be destroyed, as consent could not be given retroactively. He stated that it was a matter of human rights in terms of personal search, and further referred to a case on gynaecological examination done without informed consent.

He then went on to discuss collection of data and the mandatory nature of Aadhaar.

He stated that data could not be bartered or forced to be bartered.

Referring to the Ahmedabad St. Xavier’s College Society v State of Gujarat case, he stated that one could not be forced to barter away their fundamental rights. He then referred to a South African case (Jordan vs. State) on bodily privacy. He also referred to the Planned Parenthood case and Roe vs. Wade.

Moving on to the argument on handing over sensitive data to states as opposed to private parties, he stated that the state should be held to a higher degree of scrutiny and that the principle of proportionality would be relevant in this regard.

Referring to the recent judgment on passive euthanasia (Common Cause vs. Union of India), he questioned whether the citizens were ‘guinea pigs’ for the UIDAI and the Union.

He also stated that the UIDAI should be requested to hand over numbers on errors of biometric authentication. Further, he stated that there was an undue burden on people to authenticate, which was unconstitutional.

Referring back to the Common Cause judgment, he discussed the portions on free and informed and the right to die and the duty to live.

He also discussed the ECHR judgment of MK vs. France, stating that the whole population’s identities could not be stored to justify the detection of fraudulent identities. Drawing out a hypothetical situation, he questioned whether maintaining a database with DNA samples of males could be a justification to prevent sexual violence.

Mr. Viswanathan then proceeded to read out excerpts from the Marper case.

He referred to the point of enrolling agents being private entities and the lack of judicial oversight. He also referred to the Bombay Habitual Offenders Act to make a point on the lack of independent oversight during enrolment.

Referring to Justice Brandeis’ dissenting judgment in Olmstead vs. US, he stated that the state could not be allowed to become a law breaker in order to catch a law breaker.

On the issue of storage, he stated that there was no specific statutory backing and that there seemed to be no mandate to store such data in the CIDR. He also stated that the inability to access one’s own biometric data was in violation of Article 19 and 21 of the Constitution.

Further, he stated that the Act lacked a purpose limitation. He also stated that the state had failed at discharging off its burden.

Moving on, Mr. Viswanathan stated that Section 7 of the Act was unconstitutional. He also stated that Aadhaar had the capacity to do grave damage.

On the point of exclusion caused by Section 7, he stated that this was not merely a question of poor implementation but was also a fault of the law. He referred to the reported case of inadequate server capacity and the subsequent authentication failure in Rajasthan.

He reiterated that there was an undue burden being created on the citizens.

Referring to the spousal notification requirement in the case Whole Woman’s Health v Hellerstadt, 136 S.Ct. 2292 (2016), he discussed the respondent’s submission, stating that the notification requirement would only affect 1 % of women and would not impose a problem on the majority of women. The Court in this case disagreed with the submission, stating that the fact that a majority of the population would be unaffected did not validate the notification.

He also referred to the Vijaysingh Chandubha Jadeja vs State of Gujarat case of 2011.

Lastly, he discussed smart cards and their efficiency. He also discussed the issue of leakages, stating that even in instances where Aadhaar had not been issued, it had been claimed that leakages had been prevented. He also discussed the issue of PDS irregularities.

Mr. Viswanathan will conclude his arguments in the next hearing.