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

By Arpita Biswas

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 10^th of May and the matter is now reserved for judgment.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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 10^th of May.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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).

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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 arguments advanced on Day 16 have been divided into two posts, the first post can be found here.

Mr. Chidambaram continued with his arguments. He went on to discuss the concept of money bills in other jurisdictions, stating that it was meant for tax and debt related purposes.

He stated that the objective of the Act had to be within the confines of Article 110(3).

He proceeded to read out excerpts related to the consolidated fund and other related excerpts from the submissions.

Further, he stated that the law imposing GST was introduced by a money bill, which was appropriate since it was a tax bill.

Mr. Chidambaram stated that not all instances of appropriation of money would validate the use of a money bill.

He then went through provisions of the Aadhaar Act, namely, Section 7, 8(4), 23(2)(h) and 54(2)(m).

He moved on to discussing the ‘most questionable section’ of the Aadhaar Act – Section 57.

Mr. Chidambaram reiterated that if a money bill could only be passed on issues related to Article 110 (3) (a) – (f), and that anything that fell outside the purview of those provisions would be a financial bill.

He then questioned whether any provision of the Aadhaar Act fell squarely within provisions (a) – (g), stating that Section 57 certainly did not and that Sections 23(2)(h) and 54(2)(m) also do not fall within the scope of these provisions.

He further stated that even if the assumption was in favour of the government, assuming that ‘subsidies, benefits and services’ was the objective of the bill, Section 57 would introduce ambiguity and exclude the bill from the purview of a money bill. He stated that currently, the bill was beyond the scope of (a)-(g).

Justice Chandrachud raised a question about the validity of the Act, questioning if the Act could be saved if only a certain portion was introduced as a money bill, and certain portions were not. He stated that perhaps there were some portions which were related to Article 110(3) and could be saved.

Mr. Chidambaram responded, stating that this was out of question as the bill was not severable.

He went on to read out relevant portions of the Australian Constitution, specifically Articles 53, 54 and 55. He specified that if a money bill imposes a tax, it should only deal with such taxation to qualify as a money bill.

Justice Chandrachud further questioned whether the doctrine of severability would apply to the statute.

Mr. Chidambaram stated that by introducing these provisions the right of the Rajya Sabha to review had been taken away.

He stated that even assuming that ‘subsidies, benefits and services’ would come under the purview of Article 110, the afore-mentioned 3 provisions would render it outside the scope of a money bill.

Justice Chandrachud concluded that if the 3 afore-mentioned provisions were not included, the Rajya Sabha could have made amendments.

Mr. Chidambaram further stated that if this bill could slip through as a money bill, anything could pass through as a money bill. He stated that a money bill was a narrow subset of the financial bill and would have far reaching consequences if implemented incorrectly.

Mr. Chidambaram concluded his arguments and Mr. K.V. Viswanathan commenced his arguments.

Mr. Viswanathan laid out his submissions. His first submission related to the validity of Aadhaar, he stated that it construed an invasion of Article 14, 21 and the fundamental right to privacy.

Next, he stated that the three subheads relating to the ‘collection, storage and use’ of data invalidated privacy as well.

Further, he stated that Section 59 of the Aadhaar Act fell short of being a validation clause and questioned its validity.

He also addressed the ‘exclusionary aspect’ of Section 7.

He also stated that the Act lacked a purpose limitation, stating that it did not set out a purpose for data collection. He further stated that the promise that an Act will be reasonably administered would not be enough to pass muster.

Lastly, Mr. Datar revisited the issue on Aadhaar numbers being required for issuing passports, stating that this was in contravention of the Supreme Court’s orders. The Attorney General stated that Aadhaar was only required for expediting the issuance of tatkal passports and was not required otherwise.

On this matter, and all other matters related to Aadhaar linking, with the exception of ‘benefits, subsidies and services’ under Section 7, the deadline for linking stands extended indefinitely. The Supreme Court’s order detailing the same can be found here.

The hearing will continue on the 14^th of March, 2018.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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 arguments advanced on Day 16 have been divided into two posts, the second post can be found here.

Senior Counsel Arvind Datar briefly addressed the issue of Aadhaar numbers required for issuing passports, despite the courts assurance against the same. The Chief Justice stated that this matter would be addressed later in the day.

Senior Counsel P. Chidambaram continued his arguments from the previous week, starting off with the 3^rd proposition of his submission.

He reiterated that as per Article 110(3) of the Constitution, the speaker’s decision would not be final and would be subject to judicial review.

On the scope of judicial review, he referred to the judgment Sub-committee on Judicial Accountability vs. Union of India (1991 SC 699). He read out excerpts relating to judicial review on matters of procedural law and substantive law. One of the excerpts was as follows:

“The principles in Bradlaugh is that even a statutory right if it is related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament’s own concern. But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the Parliamentary procedure. Even in matters of procedure the constitutional provisions are binding as the legislations are enforceable. Of the interpretation of the Constitution and as to what law is the Courts have the constitutional duty to say what the law is. The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws. Indeed, the learned Attorney General submitted that the question whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclusively for the courts to decide.”

He then proceeded to read out excerpts from S.R. Bommai vs. Union of India (1994 3 SCC 1).

He referred to the ‘finality clause’, stating that inspite of the President’s decision being considered the final in instances of emergency being declared, such decisions were to be subject to judicial review. He also referred to certain ‘widest possible phrases’ that were discussed in this case, specifically – ‘final’, ‘conclusive’, ‘shall not be questioned in any court on any ground’.

Mr. Chidambaram then stated that it would be an inexcusable error if any bill was passed as a money bill as this would deprive the Rajya Sabha of its right to review, which could also amount to a constitutional violation. He also stated that this would strike at federalism, which is a basic feature of the constitution.

He then went on to discuss a 2007 case Raja Ram Pal vs. Speaker, Lok Sabha (2007 3 SCC 184). Referring to excerpts, he stated that procedural illegality cannot be a ground for judicial review, but substantive illegality can.

Further on the point of judicial review, he also stated that there was a breach of constitutional privilege and that the Court could not be restricted in this manner. He also stated that the Parliament was not a body affiliated with the Courts.

Mr. Chidambaram then went on to refer to Article 122 of the Constitution.

He then referred to a case titled Saeed Siddiqui vs. State of Uttar Pradesh (2010 4 SCC 1)

In this case, the U.P. Lokayakta and U.P. Lokayuktas (Amendment) Act, 2012 was passed as a money bill.  He read out the following excerpts from the case:

“Among all the contentions/issues raised, the main challenge relates to the validity of U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 2012. In order to consider the claim of both the parties, it is useful to refer the relevant provisions. The State of U.P. has brought an Act called the U.P. Lokayukta and Up-Lokayuktas Act, 1975 (U.P. Act 42 of 1975)…

…The main apprehension of the petitioner is that the Bill that led to the enactment of the Amendment Act was passed as a Money Bill in violation of Articles 197 and 198 of the Constitution of India which should have been passed by both the Houses, viz., U.P. Legislative Assembly and U.P. Legislative Council and was wrongly passed only by the U.P. Legislative Assembly. During the course of hearing, Mr. Desai, learned senior counsel appearing for the State of U.P., placed the original records pertaining to the proceedings of the Legislative Assembly, decision of the Speaker as well as the Governor, which we are going to discuss in the later part of our judgment…

…Further, Article 212 precludes the Courts from interfering with the presentation of a Bill for assent to the Governor on the ground of non-compliance with the procedure for passing Bills, or from otherwise questioning the Bills passed by the House. To put it clear, proceedings inside the Legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. This is also evident from Article 194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof…

…34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue ofArticle 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs. Hon’ble Speaker Lok Sabha and Others (2007) 3 SCC 184, it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.

35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be… 

…Besides, the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending in the State Legislature and before it becomes an Act. It is brought to our notice that in the instant case no such question was ever raised by anyone…

…In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963 SC 589, the Constitution Benches of this Court held that (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.”

 It was held in this case that the decision of the speaker on the validity of a money bill was final, however, Mr. Chidambaram stated that this case does not substantively discuss why a money bill was implemented in the given case or why the amendment Act was passed as a money bill.

He then went on to discuss the case of Mangalore Ganesh Beedi Works vs. Union of India (1974 SCR (3) 221).

The discussion then moved on to ‘procedure’ under Article 199 and 212.

Mr. Chidambaram stated that Article 212 seems to make it possible for the citizen in the appropriate court of law to challenge the validity of proceedings, not from mere irregularity but illegality as well.

He then went on to discuss a 2016 case regarding the Orissa Special Courts Act, which was passed as a money bill. He referred to relevant excerpts which distinguished between regularity and irregularity.

He stated that procedural irregularity stood in stark contrast to substantive illegality.

He reiterated his proposition, stating that Article 199(3) does not bar the court from judicial review of whether a bill is a money bill.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

Update from the SCOI: In Re: Prajwala

By Arpita Biswas

In 2015, the NGO Prajwala sent the Supreme Court a letter raising concerns about videos of sexual violence being distributed on the internet. Over the years, an expert committee was established, which has recommended auto-blocking select search terms and setting up online portals to register complaints against sexual abuse material, amongst others.

Our coverage on the matter can be found here.

The matter was heard today by a bench comprising of Justice Lokur and Justice Lalit.

Following from previous hearings, where the setting up of the ‘online cyber crime reporting portals’ was discussed, the petitioners have asked for 4 months time to train officers in charge of such portals.

Further, on certain proposals, petitioners and respondents disagreed on what could be administered and what was technically feasible. The respondents further stated that the technology was not available to implement certain proposals.

The order passed today can be found here.  The next hearing is scheduled for the 16th of April, 2018.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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 Arvind Datar commenced the day’s argument by commenting on the contradictory nature of the consent form under the PML Act, since the Act mandates the use of Aadhaar otherwise.

He then went on to discuss the validity of a money bill. He referred to debates and discussions in the Parliament, stating that Section 57 of the Aadhaar Act was meant to be struck down at certain points. He stated that as per the Puttaswamy judgment, Section 57 would also not stand since it vitiated personal autonomy.

Further on Section 57, he commented on the use of an ‘Aadhaar number for establishing the identity of an individual…or any contract to this effect’ and questioned what the nature of such a contract would be.

Referring to the ‘private parties’ aspect of Section 57, Justice Chandrachud questioned what kind of a compelling state interest could make private parties ask for Aadhaar numbers.

Mr. Datar also discussed the matter of excessive delegation under Section 56 of the Act stating that ‘any law’ referred to primary legislation.

He then went on to discuss cases of exclusion caused by Section 7 of the Aadhaar Act. He also reiterated the point that there were divisions being made which were manifestly arbitrary.

Mr. Datar then discussed the requirement of furnishing Aadhaar for NEET, AIBE and CBSE exams – the last date for which is the 9^th of March, 2018. The discussion then moved on to the interim orders passed prior to the Aadhaar Act being enacted and the validity of linking Aadhaar with services other than the 6 services mentioned in the 2015 order.

The Attorney General stated that interim orders would be ‘wiped off’ when the Aadhaar Act came into force and that the orders were only valid in a time period when there was no statute.

Justice Chandrachud questioned whether the government would be bound by the interim order passed on the 15^th October 2015.

Justice Bhushan questioned what impact the law would have had on the validity of the orders since the orders were not passed due to the absence of a law.

The Attorney General remarked on the fact that there were a large number of impersonations which the Aadhaar Act was meant to fix.

Justice Chandrachud and Justice Bhushan stated that Aadhaar could still be voluntary in nature.

The discussion then moved on to the March 31^st deadline for linking Aadhaar with bank accounts, the petitioners asked for an extension to be granted at the earliest.

Justice Chandrachud further stated that such a decision should be taken up at the earliest, since entire financial markets needed to know what was to be done and such a decision could not be made closer to the 31^st of March.

Senior Counsel P.C. Chidambaram commenced his arguments. His arguments focussed on the validity of the money bill.

He stated that the Aadhaar bill could not have been passed as a money bill and that the Rajya Sabha should have had the opportunity to scrutinize the bill. He questioned how a legislation could bypass scrutiny by the Rajya Sabha in a bicameral legislature.

He then went on to discuss Article 107, 117 and 110 of the Constitution.

He stated that Article 107 gave the Rajya Sabha parity with the Lok Sabha.

He then went on to discuss Article 117 and financial bills.

He then read out Article 110 of the Constitution, which lists out the definition of money bills.

He then detailed the difference between financial bills and money bills, stating that a financial bill can make provisions for matters listed under Article 110(a) – (f) in addition to other matters however, money bills can only make provisions for matters listed under Article 110(a)-(f).

He then detailed his first submission, which was that the Aadhaar Act should not have ‘escaped’ under the guise of a money bill.  For his second submission, he referred to the difference between the money bill and the financial bill mentioned above.

Mr. Chidambaram then went on to discuss the substantive difference between Article 107 and 110, stating that the word ‘only’ was the differentiator.  He stated that ‘only’ was a word of exclusion and intended to leave out anything that was alien.

He went on to refer to interpretations of Article 74(2) and 71(1) stating that in these provisions the jurisdiction of the judiciary was clearly excluded, and the same would follow in the given instance.

While referring to the scope of Article 110(3), he discussed Article 103(1) and the disqualification of election commission members. He stated that while clause (1) stated that all questions would be resolved by the President of India, it was understood to be a decision of the Election Commission and a similar interpretation could apply to Article 110(3).

Lastly, an interim order was passed today which allowed forms of identification other than Aadhaar to be used, and thereby made Aadhaar non-mandatory for NEET, AIBE and CBSE exams.

The next hearing is scheduled for the 13^th of March, 2018.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi