Dealing With Revenge Porn in India

In March of 2018, a man in West Bengal was sentenced to five years imprisonment and fined Rs 9,000 for uploading private pictures and videos of a girl without her consent as revenge for ending their relationship. Under the promise of marriage, the accused pressured the complainant into providing explicit images of herself, and leveraged his threats to upload these pictures onto social media to acquire more pictures. Later, he accessed her phone without her knowledge to retrieve more private pictures and videos. When the complainant refused to continue their relationship, he uploaded this material onto a popular pornographic website along with both her and her father’s names. In addition to the defendant’s imprisonment and fine, the state government was directed to treat the victim as a survivor of rape and grant appropriate compensation. With evidence provided by service providers Reliance Jio and Google, the perpetrator was convicted under Sections 354A, 354C, 354 and 509 of the IPC as well as Sections 66E, 66C, 67 and 67A of the IT Act, in what is likely the first revenge porn conviction in India.

Revenge porn is a form of non-consensual pornography that came to international attention with the 2010 launch (and subsequent 2012 takedown) of the popular website IsAnyoneUp, which allowed users to upload nude photographs. While a number of these images were ostensibly self-submitted, many were revealed to have been submitted by angry ex-lovers, which would amount to ‘revenge porn’. Compounding the issue was the fact that these explicit images deliberately linked to the social media profiles of the person in the image.

According to Halder and Jaishankar, the essential elements of revenge porn are that the perpetrator and the victim shared an intimate relationship, and that the former has deliberately (and without the victim’s consent) released sexually explicit information online in order to cause distress and harm to the victim’s reputation.

While revenge porn is often used interchangeably with the term “non-consensual pornography”, it is distinct from other forms of non-consensual pornography such as rape videos, morphing or voyeurism. For instance, non-consensual pornography includes within its ambit sexually explicit images captured without a person’s knowledge or consent. However, revenge porn often includes such sensitive information that has voluntarily been captured or sent to the perpetrator in good faith in the course of an intimate relationship. Further, unlike in the case of revenge porn, not all perpetrators of non-consensual pornography are motivated by personal feelings such as revenge (as in the case of hackers who released intimate photos of more than 100 female celebrities after gaining access to their private iCloud accounts).

As a result, researchers are moving away from the term “revenge porn” as it can be somewhat misleading. “Revenge” limits the scope of this offence to motivations of personal vengeance, whereas such an act could be motivated by a desire for profit, notoriety, entertainment, or no reason at all. “Porn” implies that all images of nudity are intrinsically pornographic. Sexually explicit images created and shared within a private relationship should not be considered pornographic, unless they are distributed without consent, as this results in a private image being converted into public sexual entertainment. Accordingly, many victim advocates prefer to use the term “non-consensual pornography” or non-consensual sharing of intimate images.

Although the National Crime Records Bureau documents cyber-crimes against women, there are no official statistics available that pertain specifically to revenge porn in India. A 2010 report suggests that “only 35 per cent of the women have reported about their victimization, 46.7 per cent have not reported and 18.3 per cent have been unaware of the fact that they have been victimized … women prefer not to report about their victimization owing to social issues.” Victim-shaming (both by the criminal justice system and the public at large) is common, and the potential social fallout often extends to the victim’s family as well.

The recent surfeit of revenge porn has prompted many countries to enact legislation that criminalises it. These include the UK, many states in the USA, Canada, Australia, Japan and the Philippines.

At present however, there are no legal provisions that directly address revenge porn in India. While certain sections in the Indian Penal Code (IPC) and Information Technology (IT) Act can be invoked by victims, they fail to fully encompass the complexity of such cases and do not specifically target non-consensual pornography published online.

Section 354C of the IPC makes voyeurism punishable, and Explanation 2 to the Section deals with the non-consensual dissemination of consensually-captured images. However, this section limits its scope to female victims and male offenders.

In cases of non-consensual pornography (particularly those that involve morphing), victims can also seek recourse under Section 499 of the IPC for criminal defamation.

Section 66E of the IT Act punishes the transmission of images depicting the private areas of a person. The Explanation to the section limits private area to “… the naked or undergarment clad genitals, pubic area, buttocks or female breast”. This provision is gender-neutral and captures every aspect of revenge porn while not addressing it by name. However, the narrow definition of “private areas” in this case could limit the applicability of the act in cases where the victim is captured in an intimate position without showing those particular areas.

Section 67A of the IT Act punishes publication or transmission of “material containing sexually explicit acts, etc. in electronic form”. While this can effectively punish perpetrators, it also risks including within its ambit, victims who may have voluntarily captured and shared such private content with their partners.

The recent Supreme Court judgment recognising privacy as a fundamental right could have substantial implications on revenge porn and non-consensual pornography in general, in light of arguments recognising the right to bodily integrity. Copyright law could also potentially be used by victims, particularly when the content is a selfie. By claiming a violation of their copyright, a victim could potentially get such material taken down. While Indian copyright law does not presently provide any relief to victims of revenge porn, some victims in the US have successfully enforced their copyright to get such images taken down.

Social media platforms are often used to disseminate such content. Until recently, their role was limited to removing non-consensual pornography and other offensive images. However, there have been calls for them to play a more active role and filter this content before it is uploaded. Facebook has attempted to prevent the re-posting of revenge porn by cataloguing content which had been previously reported as revenge porn on its site.

The gender disparity in victims of non-consensual pornography is a reflection of the hostility still faced by women on the internet today. Involuntary porn today can be considered “the sexual harassment of 20 years ago. It’s an easy way to punish women for behaving in ways that they don’t approve of – for leaving them, for rejecting them, for being happy without them.”

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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.

 

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 XXXVI)

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 AG resumed his submissions on the issue of money bill. He reiterated that Ar.110(1)(g) is a stand alone provision and therefore there can be a bill which deals only with it and not deal with Ar.110(a)-(f). Referring to s.57, he submitted that independent laws can be passed under the section as long as it is relatable to Ar.110(a)-(g).

The CJI interjected that s.57 is an enabling provision that allows the state legislature to introduce Aadhaar either as a money bill or not for various services and that its nature would be examined only if its challenged in a court of law.

Justice Chandrachud mentioned that when Aadhaar platform is used by the states through law or by private parties through contract, it must conform with the data protection provision.

The AG responded that Aadhaar architecture is created by central law and therefore unless it authorizes the use, the states can’t use it. He further submitted that the government of India has created this massive structure to provide subsidies and other services but requires it to be self-sustaining and therefore has opened it to the private parties.

Justice Chandrachud interjected that s.7 retains the nexus to the consolidated fund of India (CFI) but s.57 snaps it. He pointed out that a private party could join the Aadhaar infrastructure through contract for purposes that have no nexus to the CFI. He said that based on this, the petitioners are arguing that s.57 does not qualify as money bill.

The AG responded that one has to look at the Act in totality and not examine if each provision would qualify as money bill. He conceded that s.7 is the nexus to the money bill but submitted that s.57 is part of the Parliament’s efforts to open the Aadhaar platform to other entities.

Next, he discussed the issue of telecom linking to Aadhaar. He argued that the linking eliminates all possibilities of forgery and fraud. He pointed out that the linking will remain optional only till the final disposal of the matter.

The AG then submitted that surveillance is prohibited under the Act and therefore the Act cannot be struck down merely because there is a possibility for it. He raised objection to the usage of the terms “concentration camp”, “electronic leash”, and “totalitarian state” by the petitioners.

Senior counsel Shyam Divan commenced the rejoinder on behalf of the petitioners. He submitted that it is the first time that a technology of this kind is deployed in a democracy. He stated that Supreme Court is the absolute vanguard of traversing human rights into technology. He argued that surveillance state is not permissible under Constitution and objected to the respondent’s argument that Aadhaar infrastructure does not result in surveillance.

He next referred to an affidavit filed by the Union on March 9, 2018.

He submitted that there are three elements of surveillance- identity of person, date and time, and location. He pointed out that the Act itself requires identity, date, and time at the time of authentication. Referring to the affidavit and presentation of the CEO and supporting documents, he argued that the response of the government’s experts to the petitioner’s experts states that biometric database is accessible to third party vendors. He submitted that the breach of the verification log would leak location of places where an individual performed his authentication in the past five years. He submitted that this compromises the security of privacy. He further pointed out that as per the presentation report, it is possible to track the current location of the individual even in the absence of a breach. He submitted that the UIDAI knows the location but for a third party to access the location, he would have to breach the verification log.

He therefore submitted that as per the experts of both parties, all three elements of surveillance are satisfied by the Aadhaar architecture.

Justice Chandrachud interjected that in a digital world one cannot ever have a guarantee of absolute security and therefore as long as the database is kept secure, an adequate level of privacy is maintained. Mr. Divan responded that this is not just a privacy issue but also a limited government issue. He argued that the coercive power of government cannot extend to the creation of an infrastructure that is capable of tracking people across five years in real time.

Next, referring to the CEO’s submission that all devices will have a unique ID to enable traceability and detection of fraud, he submitted that this would enable the individual to be traced using the device.

Mr. Divan then raised objection to the AG’s submission that UIDAI is distinct and autonomous and that the union government is different from it and therefore the latter would not be provided with access to the data. He argued that no instrumentality of state should establish such a mass surveillance regime. He submitted that the Supreme Court should not permit something so deeply flawed to function in the country.

He argued that if our constitution repudiates surveillance state, we cannot have a legislation which allows it. He submitted that the Supreme Court should not usher in a machinery that can trace back the locations, as it is constitutionally impermissible. He further submitted that if the court arrives at the conclusion that there is indeed surveillance, then balancing of rights is impossible.

Next, he referred to the answers submitted to the UIDAI in response to the questions asked by the petitioners subsequent to the CEO’s presentation. He pointed out that in the answers the UIDAI has mentioned that it does not take responsibility for correct or incorrect identification but only provides a matching system which is a self certification system. He argued that the UIDAI does not verify the authenticity of the documents submitted and with the linking of the bank accounts to the Aadhaar, now even the bank authorities do not check the authenticity of the documents. He submitted that UIDAI has no responsibility for identity.

The hearing will continue on May 9, 2018.

SC Constitution Bench on Aadhaar- Final Hearing (Day XXXV)

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.

Advocate Zoheb Hossain continued his submissions for the State of Maharashtra and the UIDAI. He began with referring to various international charters and covenants, stressing on the importance of harmonizing between the economic and social rights and the civil and political rights.

Justice Chandrachud noted that the Directive Principles, even though they are non justiciable, are necessary for good governance and as a guarantee of reasonableness of the law. This is why they are read into Article 21.

The counsel argued that all rights give rise to corresponding duties, and that Aadhaar was a project to secure the economic and social rights of the people. He then brought the Court’s attention to the Justice Wadhwa Committee Report on the Public Distribution System. He then brought the Court’s attention to various precedents. He referred to the case of DK Trivedi, where the Court had held that ensuring socio economic welfare was a constitutional obligation of the State. Further, it had been held that a statute could not be judged on the presumption that the executive power that it confers would be abused, or used arbitrarily.

The counsel then referred to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and resolutions of the UN General Assembly. He reiterated that rights were indivisible and interconnected, and that socio economic rights were equal to the civil and political rights.

The counsel then argued that the proportionality and reasonableness of a restriction must be examined from the point of view of the general public, and not that of a specific party that claims to be affected. He argued that even if Aadhaar is used for different purposes such obtaining a SIM card or opening a bank account, the data remains disaggregated. He stated that as a consequence, there was no possibility of surveillance, even at the level of the Requesting Entities.

The counsel then drew a comparison between Aadhaar and the Social Security Number in the United States. He noted that the SSN was used for a variety of purposes, and that people could be denied benefits for not producing their SSN. He argued that the Courts in the US had upheld the firing of an employee for refusing to provide his SSN. The counsel then argued that the Aadhaar Act had sufficient safeguards in place over the identity and authentication information. He referred to Section 33 of the Act, noting that decisions made under that Section were subject to review by an oversight committee. He concluded that the safeguards in place were greater than what are provided by the Telegraph Act, and the standards laid down by the Supreme Court in the PUCL case.

Post lunch, the counsel resumed his submissions for the Respondents with examining how various search and seizure related provisions under the IT Act and CrPC had passed constitutional muster. He then proceeded to the issue of ‘national security.’ He argued that in times of emergency, a strict adherence to the principles of natural justice is not necessary. He referred to a House of Lords decision that read in a national security exception to a statute even though the text did not provide  for it.

He then addressed the contention with respect to Section 47 of the Aadhaar Act, arguing that it provided for sufficient remedy since a complaint could be filed to the UIDAI. He argued that Aadhaar had many technical aspects, so it would be best if only the Authority has the power to complain. He noted that a similar setup in the Industrial Disputes Act had been previously upheld. In addition, he noted that the UIDAI could authorize a person to make a complaint as well.

The counsel then submitted that the Aadhaar Act had sufficient safeguards for the CIDR, while provisions under the IT Act would cover actors outside the CIDR.

The counsel then framed the purpose of Section 139AA of the Income Tax as a measure to ensure redistributive justice, to ensure substantive equality. He argued that ‘distribute’ in the Directive Principles had been interpreted liberally, and measures to prevent leakages would thus be considered redistributive.

The counsel then moved to the addressing the argument about compelled speech. He argued that not all transactions can be considered to have a speech element, for instance linking the Aadhaar to PAN. He further noted that the Court in Puttaswamy had held that rights could be curbed to prevent tax evasion and money laundering. He added that the Income Tax Act and the Aadhaar Act were standalone Acts, and that after Binoy Viswam, it was settled that they were not in conflict. He responded to the contention that only individual tax payers had been mandated for linkage, stating that a measure need not strike at all evils at once. He argued that the linkage could help cure ills with companies as well, by revealing the people behind them. The linkage can allow the deduplication of DINs. Advocate Zoheb Hossain then concluded his arguments.

The Attorney General then began his arguments, by addressing the Money Bill issue. He argued the Act was, in pith and substance, a Money Bill. ‘Targetted Delivery of Subsidies entails the expenditure of funds. He argued that every act would have ancillary provisions dealing with review, appeal etc., but the primary purpose deal with the Consolidated Fund of India.

Justice Chandrachud questioned the counsel about whether Section 57 of the Act severed that link. The AG responded that the Section merely allowed the existing infrastructure to be used for other purposes, and was just an ancillary provision. The UIDAI had been brought into existence primarily to prevent leakages and losses.

Justice Sikri noted that there was no distribution of benefits or subsidies under Section 57. The AG argued that the Section would be saved by Article 110(1)(g) of the Constitution, and stressing on an interpretation of the word ‘only’ in the Article. Justice Chandrachud suggested that that might amount to rewriting the Constitution.

The Attorney General will resume his arguments on May 3, 2018.

 

SC Constitution Bench on Aadhaar- Final Hearing (Day XXXIV)

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.

Counsel Gopal Sankaranarayanan, appearing for the intervener Centre for Civil Society, resumed his arguments. He began with a discussion on the right to identity and submitted that it is an absolute intrinsic part of Ar.21. Justice Chandrachud interjected that one has an umbrella identity of a citizen and in addition has multiple identities associated with race, religion, caste, which are not taken away by Aadhaar. He further mentioned Aadhaar only identifies the individual who is seeking the benefits under s.7 of the Act and therefore the constitutional identity is not effaced.

Mr. Sankaranarayanan responded that Aadhaar is a number that helps in establishing the identity of a person who avails the benefits and subsidies under s.7 of the Act.

He further submitted that he supports Aadhaar because of the safeguards and pillars which the Act have in place and pointed out that s.139 AA of the Income Tax Act does not have those.

Next, referring to the statement of objects and reasons of the Act, he submitted that identification of targeted beneficiaries is the key purpose and therefore Aadhaar is voluntary and could be used a proof of identity by persons who are beneficiaries of subsides. He further stated that even if someone does not have an Aadhaar the state has an obligation to identify the person as he has a fundamental right to identity under Ar.21 and cited it as the reason for the way in which s.7 is drafted.

Justice Chandrachud pointed out that the concern raised is that the state has restricted the means of identification solely to Aadhaar. Mr. Sankaranarayanan responded that according to Ar.266(3), utilization of any amount from the consolidated fund has to be in accordance with the law, the Aadhaar Act in this case, and that it would not only be a violation of the scheme of law but the Constitution itself if any amount goes from the consolidated fund to a person who is not entitled to receive it. He further submitted that the government has an onus to secure the fund and that the Act helps in ensuring that the obligation is discharged and therefore the action of the government is subserving a fundamental right. But he argued the government’s submission that s.7 is in furtherance of fundamental rights is flawed, since identification of beneficiaries would not have been required as everyone would have been entitled to it if it was a fundamental right. He therefore submitted that it is in furtherance of Directive Principles.

Justice Chandrachud mentioned that when the state is enforcing a Part IV value, it indicates reasonableness and thereby a restraint on judicial review. However he stated that as per s.7, Aadhaar is not completely voluntary since it is required for a person who wants to avail a benefit. Mr. Sankaranarayanan responded that it is voluntary since it is not mandatory for 1.3 billion of the country but only for a specific section of the population.

Next, Mr. Sankaranarayanan raised concerns with Aadhaar becoming the universal proof of identification (PoI) replacing all other 18 PoIs. He submitted Aadhaar is only as foolproof as any of the other PoIs.

He then submitted that making Aadhaar mandatory for purposes other than what is provided in s.7 is arbitrary and that the section has the balance of limited purpose whereas s.139AA of the Income Tax Act does not. He further mentioned that the reasonableness and proportionality criteria would be satisfied only if Aadhaar remains voluntary for purposes other than s.7.

Addressing the issue of proportionality, he submitted the least restrictive test should not be applied as proportionality deals only with balancing of rights. He also stated that entrusting data with CIDR is safer than using embedded cards as one can misplace his card. He further stated that the legal safeguards and limitations provided under the Act are balancing factors for proportionality.

Mr. Sankaranarayanan then argued that UIDAI should plug the holes in the Aadhaar architecture before rushing with it especially since at present Aadhaar is unable to keep up with the technology. He also raised concerns with the level of security assured by the state and submitted that even 2048 bit asymmetric key is not the best. Next, he submitted the authentication history of the CEO of UIDAI and pointed out that his biometrics is locked indicating his distrust in the safety of his biometrics offered by CIDR.

Mr. Sankaranarayanan, then submitted that there are various problems with the Act. Firstly, he argued the requirement under s.8(4) to share identity information is a violation of privacy with no counterbalancing state interest. He stated that address is also as important as biometrics and therefore authentication should be restricted to Yes or No. Secondly, he submitted that s.29(2) conflicts s.12 of the Right to Information Act. Thirdly, he argued that s.139AA of the IT Act targets individual income tax pan holders and not corporates even though it is always dummy companies and not individuals that are involved in the scams. He also submitted that Aadhaar has been made mandatory for income tax purposes without informed consent and in spite of it not being related to the consolidated fund of India. He therefore submitted that it fails the proportionality test. He argued that if the purpose was to curb black money and money laundering, it is not achieved by linking PAN with Aadhaar number.He concluded by submitting that petitioners have a valid ground for expressing lack of trust in the Aadhaar architecture.

Next, senior counsel Neeraj Kishan Kaul commenced his arguments on behalf of Authentication User Agencies and e-KYC User Agencies (AUAs and KUAs). He submitted that if Aadhaar is a reliable and speedy tool for identification and authentication, it should not be held invalid. He argued that Aadhaar authentication in the banks have empowered the poor, women, and migrants and that the use of Aadhaar has helped in reducing predatory financing.

Mr. Kaul submitted that private players are also governed by the Act and have the choice to use Aadhaar if required under s.57 as it is an enabling provision. Justice Chandrachud responded that the need for verification should not be decided by the private players. Mr. Kaul responded that as long as there is consensus between the private entity and the consumer on using Aadhaar, it should not be disallowed. He argued that the AUAs and KUAs are not performing any verification outside the Act. He asked if the statute enables a private entity to use Aadhaar, a powerful tool for verification of identity, why should not it be allowed to employ it.

He further submitted that Aadhaar is extremely different from Cambridge Analytica as it is based on matching algorithms unlike learning algorithms used by Google and Facebook and also has a statutory control. He argued a statute cannot be struck down merely because there is a scope for misuse.

Mr. Kaul further argued that the nature of request that goes from AUA is to please match the information provided and if it is e-KYC the requesting entity will receive the basic demographic information and photograph. Based on this, he submitted that the CIDR does not obtain any data on location but only receives that an AUA has made a request, thereby eliminating the scope of surveillance. He further submitted that the information collected via e-KYC is collectible dehors Aadhaar and therefore the actual issue is of unauthorized sharing which is possible even outside Aadhaar and therefore it is no reason to strike down s.57. He concluded by mentioning that with the use of virtual ID, no AUAs/KUAs will be able to store the Aadhaar numbers.

Next, counsel Zoheb Hossain commenced his brief submission on behalf of UIDAI and State of Maharashtra. He began by raising an objection to Mr. Sankaranarayanan’s argument that s.7 is only in furtherance of Directive Principles. Referring to Amartya Sen and Martha Nassbaum, he argued that now there is a greater consensus that social and economic rights are enforceable and pointed out that the Supreme Court has also held that they are justiciable rights. He further submitted that the right to food, shelter, clothing are embedded in Ar.21 and that the state has a positive obligation to provide it to its citizens. He therefore submitted that here the issue is of balancing the right to privacy with other socio economic rights of the people provided by Ar.21 and not merely of furtherance of Part IV requirements. He argued that Aadhaar is an architecture that helps in progressively achieving positive duties of the state under Ar.21

The hearing will continue on May 2, 2018.