Defender of your Digital Freedom

All Posts | Mar 22,2018

Updates on Aadhaar Final Hearing: Day 20

On day 20 of the final Aadhaar hearing, Attorney General K.K Venugopal began his arguments on behalf of the respondents. He stated that various expert committees examined Aadhaar, and considered other alternatives like smart cards, before the current framework was decided upon. Mr. Venugopal cited World Bank’s ‘Identification for Development’ report, and said that the Aadhaar project is approved by the same. Further, he requested the court to grant permission for a PowerPoint presentation in open court explaining all technical and security aspects of Aadhaar. Chief Justice, Dipak Misra was of the view that the respondents should justify their legal contentions first, especially on privacy, anonymity and mass surveillance. “In the name of security, you cannot impose a stamping culture where everyone is stamped with an Aadhaar. In spite of assurance of safety, your database is not entirely safe”, he said. Mr. Venugopal pressed on having the PowerPoint presentation as according to him, it will help the State to explain its contentions better.

Moving on to his legal arguments, Mr. Venugopal pointed out that at the time the British ruled India, sixty six percent of the population lived in poverty, and corruption and leakages in welfare were widespread. Aadhaar was formulated, taking in consideration all these factors, and the architecture of the Act was designed in a manner that privacy is infringed as little as possible. Mr. Venugopal remarked that from 2009 uptil 2016, Aadhaar was completely voluntary, but people still signed up for it. Therefore there is no question of coercion, at least till September 2016. Mr. Venugopal further contended that there is a long line of decisions that have established under Article 21 various rights such as right to dignity, shelter, education, among others, and Aadhaar is a measure to secure them all. Justice Sikri observed that it is a conflict when both parties are invoking Article 21. He also asked the Attorney General to explain why individuals are getting excluded due to the Aadhaar project, and that various affidavits have been filed claiming the same. Mr. Venugopal said in response that not a single individual has come forward and made that claim, and that only NGOs have been filing such affidavits.

At this point, Justice Chandrachud interjected that economic and social guarantee is not the antithesis of political guarantee, and individuals cannot forgo political liberty for the sake of economic and social justice. He quoted Amartya Sen to give the example of Bengal famine and how it caused so many deaths due to lack of free flow of information. Whereas the Maharashtra famine that took place between 1970-73, caused fewer deaths even though the per capita income of the State had gone down the per capita income of Sudan. This was because access to information was not cut off.

Mr. Venugopal seemed to disagree with Justice Chandrachud with regard to the reasons behind the Bengal famine, and contended that the right of people to not die due to hunger and have shelter prevails over the right to privacy. Justice Bhushan refuted that argument and remarked that right to food and shelter and to live a life of dignity does not trump the right to privacy. Both the rights coexist. Further, Justice Chandrachud commented that there were no safeguards to prevent misuse of personal data that was collected for the purpose of Aadhaar between 2009-16, and that people could not contemplate giving up their personal data for commercial purposes. Also, there was no informed consent, Justice Sikri mentioned. Mr. Venugopal asserted that Aadhaar is facilitating Indian residents to get various subsidies, benefits, scholarships, among other things, and that it is an efficient, transparent delivery of services. He read out excerpts from a 1997 World Bank report on India spending on leakages, finance commission report, a report by Centre for Global development, and Wadhwa Committee report as mentioned in the case of PUCL v. Union of India.

Mr. Venugopal asserted that Section 12 of the National Food Security Act also envisaged Aadhaar for targeted distribution of food grains and to record transparent delivery of the same. He quoted Binoy Viswam v. Union of India on how Aadhaar prevented multiple identities and provides one unique identity. He contended that problems like money laundering, black money, and others can be solved using Aadhaar, and then went on to list the various schemes covered by Section 7 of the Aadhaar Act. At this point, Justice Sikri enquired how Employees’ Pension Scheme was covered under Section 7, since pension is a right/entitlement and does not come in the ambit of “subsidies, benefits and services” in Section 7. The Attorney General responded that this was done to prevent fake identity. Justice Chandrachud questioned how a pensioner living abroad will be able to produce her Aadhaar card in person, to which, Mr. Venugopal replied that Aadhaar is only for residents, and that there must be some provision in the Pension Act to give pension to an NRI. He showed the bench the circular related to pension for NRIs.

Justice Chandrachud posed a series of queries for the respondents to answer: ‘Pension accounts are individual accounts. There is no question of impersonation, then why is Aadhar required to receive pension’, ‘What if an old pensioner has dementia? His fingerprints might not work. He cannot keep running around banks for the purpose of getting authenticated.’ Mr. Venugopal answered that pension is given out of the Consolidated Fund of India, therefore its covered under Section 7. Also, there are exceptions available for people who cannot provide their biometrics, such as people suffering from leprosy.

Further, the Attorney General went on to remark that there are three million poor people in India who deserve to live a life of dignity, and that they care about their dignity more than privacy. Therefore it is paramount that the balance of rights be weighed appropriately. He also emphasized on the exceptions and other alternate methods of authentication provided under the Aadhaar Act during contingencies like power cut, network connectivity, and biometrics not working, and said that making the project better is an ever-evolving process.

The Attorney General stressed on the significance of having an ‘identity’ and remarked that official identification is more than a convenience. It is a fundamental human right, and helps in economic development, participation in electoral process, and also helps the government in providing benefits to the people. Official identification is a key enabler of sustainable development goals, he said. He concluded his submissions for the day by saying that de-duplication and aggregation of data is impossible with Aadhaar and metadata is not stored by the Central Identities Data Repository (CIDR).

The hearing will continue on Thursday, 22nd March 2018.

All Posts | Mar 21,2018

Updates on Aadhaar Final Hearing: Day 19

Day 19 of the final hearing began with Senior Advocate Meenakshi Arora submitting her written submissions to the court. Explaining the chilling effect on fundamental rights that is caused by a general and indiscriminate retention of personal data, she cited the decision in ECHR Szabo case which held data retention for long periods to be violative of right to privacy. She further referred to the EU case of Tele2 wherein metadata relating to communications retained for a period of six months was held to be contrary to the fundamental freedoms guaranteed under EU Charter. She contrasted this decision with Aadhaar which required retention of metadata for a total period of seven years.

Ms. Arora then read out the UN General Assembly resolution of November 2016 on Right to Privacy in Digital Age, talking about the powers and dangers of meta data. She stated that surveillance has a chilling effect on exercise of other fundamental rights like freedom of speech and expression. She further referred to an expert report compiled by the respondents which stated that surveillance using data in CIDR is possible however, cannot take place in a state governed by rule of law. She argued that that one should be wary of such claims and submitted that the protection being sought is for the future generations.

She then moved on to her next argument and stated that collection, aggregation and retention of personal data under Aadhaar Act has no specific purpose, and therefore violates the principles of purpose limitation and proportionality. She again referred to Tele2 case and said that unfettered retention of data in the name of national security cannot be allowed. She then referred to the 2014 report of UN High Commissioner for Human Rights and read “it will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack, relative to the harm threatened; namely, whether the measure is necessary and proportionate.”

Reading the Canara Bank judgment, she questioned the unbridled and sweeping powers being given to the authority with respect to collection and application of data collected; and the possible misuse of it, even though remote. She submitted that the lack of foreseeability and apprehension of abuse in the present case justified the intervention by the Court.

Ms. Arora then went on to state that the Aadhaar Act did not contain provisions for data protection apart from a mere obligation on the Authority to ensure security of the information which again is vague and doesn't lay down any data security standard or prescribe measures to prevent data breach.

Ms. Arora then argued that the Aadhaar project lacked judicial safeguards and effective remedies in case of a breach. Stating that right to freedom includes the right to be free of unwarranted profiling and surveillance, she again stressed that Aadhaar has a chilling effect on exercise of personal liberty and other fundamental rights. Referring to Jeremy Bentham’s idea of a model security institution called Panopticon for reformation of prison inmates, which involves a one-way surveillance in that there a constant and round-the-clock watch could be kept on the inmates by the guards in the central tower, however the inmates cannot see the guards or know if they are being watched at any specific moment.

Next, she submitted that the Aadhaar project impinged upon the right to dignity of the individuals as it amounted to requiring a license for exercise of fundamental rights. She stated that making Aadhaar a sole means of identification would neither be wise nor fair as the primary objective of the schemes is to ensure that the beneficiaries get the services instead of being excluded.

Ms. Arora concluded her arguments stating that the Aadhaar project including the Act as well as other subordinate legislations should be struck down.

Next, Senior Advocate Sajan Poovayya commenced his arguments and stated that while a legislation may satisfy the tests of proportionality and least intrusion in general, considering it from a technological viewpoint, the same legislation may prove to be intrusive. He further stated that Aadhaar might involve a compelling state interest, i.e., ensuring the identity of individuals, however, it must be achieved using the least intrusive methods. He further said that even if we assume that biometric technology is not bad, the least intrusive method like using a card with a chip which stores the biometrics, should have been used.

He opined that in a democratic society, an individual must have the right to informational self-determination and to decide the amount of information she wants to submit. He further submitted that the definition of ‘biometric information’ is open-ended and the government can add other attributes to it at a later stage through regulations. He asked that if, at a later stage, DNA helix is made mandatory by the government then whether storing it a centralized database would be the least intrusive method.

He then moved on to read the German census case of 1983 wherein it was held that for a method to be proportional, there should be clarity about the purpose, usage and linking of data. He further said that a citizen does not know or have any control over what happens to the Aadhaar data and is reduced merely to an object of information.

He then concluded his arguments by distinguishing between the localized, multi-interface biometric information contained on phones and the centralized database in Aadhaar.

Senior Advocate P.V. Surendranath commenced his arguments by stating that Aadhaar Act should pass both the tests of arbitrariness and rationality under Article 14 to be valid. He submitted that the impunged Act did not pass the muster of Article 14 and hence is unconstitutional.

He then referred to an article and mentioned the incident wherein FBI had to apologize to a person dur to false fingerprint match. He concluded by stating that there is no opt-out option and absence of control to citizens in case of Aadhaar.

Next, Senior Advocate C.U. Singh made his submissions on child rights and submitted that India is a signatory to the Convention on Rights of the Child and accordingly enacted domestic laws like Juvenile Justice Act, 2000 and Protection of Children against Sexual Offences Act, 2012. He stated that these legislations protect and ensure the privacy of the child. Further, referring to the ‘fresh start’ concept under Juvenile Justice Act, he stated that there were provisions which require the records of the delinquent child to be deleted.

He further submitted that under the Indian law, a child cannot give consent or enter into a contract. Thus, a child cannot be deemed to have given consent under Aadhaar which involves parting with data permanently. Reading the Puttaswamy judgment, he further stated that fundamental right to education cannot be subjected to production of Aadhaar. He concluded by saying that personal data belongs to an individual and not the state, and hence it cannot be nationalised.

Next, Senior Advocate Sanjay Hegde began his submissions, challenging the Act for violation of Article 25 – Freedom of Conscience and freedom of religion. Giving a reference of mark of the ‘Beast’ from the Book of Revelations, he argued that an individual has freedom of conscience and that there should be an exception for conscientious objectors to not enroll for Aadhaar.

Advocate Jayna Kothari then put forth her arguments regarding rights of transgender and sexual minority. She contended that Aadhaar Act discriminated against sexual minorities. Reading Section 2(k) of the Act, she said that while issues regarding biometric information has been discussed in detail, not much has been said about demographic data collected under the Act. She further argued that transgenders face a lot of issues getting Aadhaar as they do not have a gender identity documents required to enroll for Aadhaar. She contended that while caste and religion are left out, gender is a compulsory field resulting in violation of privacy and equality. She cited a decision of Supreme Court of Philippines stating that it struck down a similar national biometric ID system.

Next, Advocate Prasanth Sugathan appearing in I.A. No. 12907/2017 raised the issue of Non Resident Indians facing difficulties in availing various services and them being discriminated against for not being eligible for Aadhaar.

Advocate N.S. Nappinai then made a short submission saying that Aadhaar made the cyberspace vulnerable and posed a threat to national security.

With this the petitioners concluded their submissions.

The hearing will continue and the respondents will commence their arguments on Wednesday, 21st March 2018.

All Posts | Mar 16,2018

Updates on Aadhaar Final Hearing: Day 18

On Day 18 of the final Aadhaar hearing, Senior Counsel K.V Vishwanathan, continued his arguments from the previous day, stating that the Government has failed to show how Aadhaar has resulted in savings. Mr. Vishwanathan discredited the studies relied upon by the Government to show the savings, some of which were carried out even before the Aadhaar ecosystem was in place. He explained the three kinds of frauds possible in PDS scheme- eligibility, quantity and quality fraud. Aadhaar-based authentication, at best, helps prevent identity frauds and nothing else, he opined.

Mr. Vishwanathan then cited the case of S and Marper v. United Kingdom to explain how the statistics produced by the Government have been misleading. He stated that Aadhaar-based authentication does not roll out the middle man, instead it only puts a machine in between.

Citing Selvi v. State of Karnataka, he asserted that Government savings and better targeting does not justify the infringement of rights, and is hugely disproportionate. He argued that the State could have adopted less intrusive alternate measures to achieve the same purpose. In this context, Mr. Vishwanathan read out the court’s assessment in the ECHR decision of Peck v. United Kingdom, wherein examination of alternative means to achieve the same object was held mandatory. He contended that in the present case, there were less invasive measures available, for e.g., smart cards and social audits under National Food Security, food coupons, among others. However, the State failed to examine such alternatives, thus failing to discharge their burden under Article 21 of the Constitution.

Mr. Vishwanathan then submitted that the Aadhaar Act was drafted on the premise that privacy is not a fundamental right. He stated that the Act would have been drafted differently, had it been enacted after the K.S Puttaswamy judgment.

He cited Belfast City Council v. Miss Behavin’ Ltd and asserted that the legislature did not try to strike a balance between the competing rights.

At this point, Justice Sikri stated that the argument that right to privacy is not a fundamental right was taken up by the State during the Puttaswamy hearings and asked whether it would be prudent to presume that the legislature did not keep it in mind while enacting the Aadhaar Act. Mr. Vishwanathan replied that the provisions of the Aadhaar Act do not seem to show that the right to privacy was taken into consideration at all while enacting the statute. Moreover, he pointed out that this contention was made by the Government while it was defending the said statute in the court.

Mr. Vishwanathan then referred to the Department of Telecommunications directive related to mobile verification and stated that the order in Lokniti Foundation case never gave any explicit directions to use Aadhaar for the purpose of e-KYC. He further contended that a contract between DoT and Licensee cannot be used to impose Aadhaar on a third party- i.e. subscribers. With this, Mr. Vishwanathan concluded his arguments.

Next, Senior Advocate Anand Grover commenced his arguments on behalf of petitioner Matthew Thomas. His main contentions were as follows:

  • The whole architecture of Aadhaar is beyond the Act and the Act comprised only one small part of it.

  • There is no security in place to ensure that the data remains secure and private. Further, the Aadhaar infrastructure allows data to move outside the Central Identities Data Repository (CIDR).

  • The project involves a serious breach of privacy.

Mr. Anand Grover stated that unauthorised and excessive data is being collected under the Act. He further pointed out towards illegal sharing of Aadhaar data with various State Residents Data Hubs, and argued that even if the CIDR is protected, data is being distributed at all sorts of location that are not protected.

He then referred to the UK National ID project which was discarded and said that the Government had claimed that all data stored in State Resident Data Hub has been destroyed. However, destruction of data is a complicated process and cannot possibly be done by deleting data from one place.

Mr. Grover then moved on to the risks associated with the programme. He cited an example of a tuberculosis control program and stated that authentications done in this case can disclose health information of a group of people within that region.

He further stated that Section 59 does not save any action which is ultra vires the Aadhaar Act. Thereafter, Mr. Grover, went on to refute the claim that biometrics are unique and hence cannot be duplicated. He referred to the observations made by the Parliamentary Standing Committee and pointed out the defects that they had observed with respect to the use of biometrics. He also cited a study that showed that the quality of one’s iris changes within three years, thus disproving the claim that biometrics are immutable. He further referred to the Governments’s own admission in a case wherein it had stated that iris authentication will result in a huge number of false matches.

He further referred to a study by Dr. Hans Varghese Mathews which stated a very high deduplication ratio of 1:121 for 1.2 billion of population. Mr. Grover asserted that use of biometrics results in exclusion which is violative of Article 21 of the Constitution.

He then talked about the contracts of UIDAI with foreign agencies for multi-modal biometrics systems rendering it ‘insecure ab initio’. He then read out the access provision: clause 3 of Biometrics Solution Provider agreement which says that these agencies shall process all personal data in accordance with the law. Stating the dichotomy, Mr. Grover submitted that the Aadhaar Act specifically mentions that no one is supposed to have access to all this information, however, these agencies had access to all the data.

Mr. Grover then moved on to his next submission and stated that there is a complete failure to ensure safety of the data which is a requisite under the law. He contended that due to the inherent personal nature of data, its protection should be ensured and thus, if the State cannot ensure its protection, it cannot collect personal data.

He then pointed out that UIDAI had not stopped accepting authentication requests from unregistered devices, which showed their level of callousness. He submitted that the security measures adopted by UIDAI were on ad hoc basis and were devised as and when a problem arose.

Mr. Anand Grover then took the court through Aadhaar Data Security Regulations and submitted that various regulations have been challenged by him on the basis of excessive delegation. Referring to notifications issued under Section 7 of Aadhaar Act, he questioned that once an interim order has been passed whether the executive could override that order.

Citing the case of State of Bihar v. Rani Somnath Kumari, he asserted that all persons are duty bound to follow the orders of the court once it has been passed, for so long as it stands. He then went on to discuss foreign decisions.

Mr. Grover finally concluded his submissions by stating that Aadhaar project as well as Section 7 has to go.

Next, Senior Advocate Meenakshi Arora began her submissions on surveillance, stating that the Puttaswamy judgment recognizes that wherever there is collection of data, there is scope for surveillance. She talked about mass surveillance, and stated that the decision in case of S & Marper recognised that it is not the use of surveillance but also the apprehension of it that can result in chilling effect. Surveillance can give a 360 degree view into an individual’s life. Thus, in the cloak of mass surveillance, democracy can be destroyed rather than protected, she asserted. Ms. Arora highlighted the ECHR case of Szabo and Vissy v. Hungary wherein it was held that mass surveillance activities by police force violates the right to privacy, home and correspondence.

The hearing will continue on Tuesday, 20th March, 2018.

All Posts | Mar 16,2018

Understanding the SC interim order extending Aadhaar deadlines

A five-judge Constitution Bench of Supreme Court, on Tuesday, 13th March 2018 passed an interim order (available here) in the matter of K.S. Puttaswamy v. Union of India [W.P.(C) No. 494/2012] and 28 other petitions tagged along with it, extending the deadlines for linking Aadhaar with various schemes and services. The Apex Court began its final hearing in this matter, which challenges the overall validity of the Aadhaar scheme on various grounds, on 17th January, 2018.

The Bench passing the order comprised Chief Justice of India Dipak Misra, and Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan. The same Bench had previously issued an interim order on 15th December, 2017, through which it had extended Aadhaar linking deadlines to 31st March, 2018 (read our blog-post on this order here). Through the latest interim order, the Supreme Court has extended the operation of paragraphs 11, 12 and 13 of its December 2017 interim order till such time as K.S. Puttaswamy is finally heard and the judgment pronounced.

Confusing as this sounds, what it essentially means is that deadlines for Aadhaar linkages in the following cases have been extended until final disposal of the matter:

  1. Linking Aadhaar to existing bank accounts

  2. Linking Aadhaar to existing mobile phone numbers

  3. Linking Aadhaar to all Central/State Government schemes and services, except those where linkage was mandated under the authority of Section 7 of the Aadhaar Act. [Well over 100 notifications have been issued by the Central and State Governments under Section 7, linking Aadhaar to various schemes and services like PDS, LPG, MNREGA. The deadline for Aadhaar linkage in these cases remains 31st March, 2018.]

As per the latest interim order, the extended deadlines will also apply to the Passports (1st Amendment) Rules, 2018 for out of turn issue of passport under tatkal scheme as well as normal scheme.

Here are a few more salient points to be kept in mind about Aadhaar linking, based on earlier directions from the SC as well as various regulatory notifications:

  • When opening new bank accounts, proof of having applied for an Aadhaar card together with the application number will need to be provided. However, the actual process of Aadhaar linking can be completed per the extended deadline. This was said in the SC’s December 2017 interim order in K.S. Puttaswamy.

  • When obtaining new SIM cards, telcos are allowed to refuse new connections if applicants do not provide Aadhaar numbers. A Department of Telecommunications circular issued on 20.12.17 in pursuance to the December 2017 order of K.S. Puttaswamy case, extended the deadline only for re-verifying existing connections, and not for obtaining new connections.

  • The SC’s December 2017 interim order also said that Section 139AA of the Income Tax Act will continue to be governed by the SC’s judgment in Binoy Viswam v. Union of India [(2017) 7 SCC 59], which means:

    • Aadhaar number (or application number, for non-Aadhaar holders) must be quoted when applying for a new PAN card and when filing income tax returns.

    • Existing Aadhaar holders must link Aadhaar to PAN – deadline being extended till the final disposal of this matter. In case of failure to do so, PAN will be considered invalid with prospective effect.

    • Non-Aadhaar holders need not link Aadhaar to PAN.

All Posts | Mar 14,2018

Updates on Aadhaar Final Hearing: Day 17

Day 17 of the final hearing began with Senior Advocate K.V. Viswanathan continuing his submissions on the illegality of the validation Section 59 provides to the pre-legislation actions. He read the Delhi Cloth Mills case which held how a law can deem facts but cannot deem legal consequences. He further referred to Indira Sahwney decision wherein court held that legislative declaration of legislative facts were open to judicial examination. He submitted that the absence of informed consent is a compliance issue and Section 59 cannot declare compliance when it was not even there in the first place. On being asked by Justice Chandrachud about the consequences of Section 59 being declared unlawful, Mr. Viswanathan responded that it should result in the destruction of all the data collected between 2009 and 2016.

He then moved on to his next submission and stated that the Aadhaar Act and the surrounding infrastructure has made possession of Aadhaar de-facto mandatory. He stated that bartering away the fundamental rights in return for aid is an unconstitutional condition and an unreasonable classification, hence violative of Article 14 of the Constitution. He further referred to the decision in Ahmedabad St. Xavier's College Society v State of Gujarat and Olga Tellis v. BMC explaining this point further.

Next, he moved on to his submissions on choice and bodily privacy and pointed out the core issue in this case: whether the individual's decision about how to use her body can be taken over by the State, who decides for her instead.

He then moved on to distinguishing between compulsion by State and non-State actors. Mr. Viswanathan submitted that the State does not have the power to compel citizens to do particular acts except in certain defined circumstances. He then went on to detail the limits of compulsion by law on individual freedoms.

With respect to Section 7, Mr. Viswanathan submitted that subjecting vast majority of people to a probabilistic method of authentication is of grave concern and a violation of dignity.

He, then, moved on to his next submission and stated that the presumption of criminality inherent in the collection of identity information is disproportionate and arbitrary. Citing the problem of sexual assaults going undetected, Mr. Viswanathan gave a hypothetical example making it mandatory for all males to submit their DNA samples in order to identify perpetrators of sexual assault and asked the bench if such a law would pass the muster of the Constitution.

Next, Mr. Viswanathan submitted that the biometric data of individuals is collected by enrolment agencies which are private entities. Commenting on the absence of safeguards, he said that there is no judicial or independent oversight during these enrolments.

He further submitted that on the aspect of storage, the Aadhaar Act is violative of privacy. He said that the centralised storage of data in CIDR is disproportionate. Moreover, he contended that the absence of a right to access one’s own biometric data is violative of Article 19 and 21 of the Constitution and represents the failure on the State’s part to fulfil its obligation of providing unimpeded access to the individual’s own data.

He then went on to his next point and stated that the Aadhaar Act lacked purpose limitation. He declared the Act to be an ‘open ended general purpose vehicle’ and read the decision in S & Marper in this context.

Moving on, Mr. Viswanathan submitted that the Aadhaar Act legitimised mass surveillance by State which is antithetical to the principles of democracy. He argued that the Act did not define ‘national security’ and did not require any ex-ante or ex-post independent oversight.

Next, he submitted that Section 7 of the Act had resulted in the exclusion of most marginalised sections of the society and hence in unconstitutional and violative of Article 14. Citing figures from Economic Survey of India, he pointed out the rate of authentication failures in Rajasthan (37%) and Jharkhand (49%) and submitted that the validity of the Act should be judged not by its object but by its direct effect on the fundamental rights of the individuals. He said that mandatory authentication at point of use violated Article 21 and violated the individual’s right to choose how to identify themselves.

Mr. Viswanathan argued that the Government had failed to discharge its burden of proof to justify infringement of fundamental rights under Article 21. Further, he stressed that the Government had also failed to show how Aadhaar has resulted in stopping the losses and resulted in significant savings. He said that wherever the individuals had not given or linked Aadhaar, it was taken as a case of savings or plugging of leakages. He further pointed out the incorrect assumptions in the State’s claims of savings and said that it has been safely assumed by the State that leakages are caused only due to identity fraud.

The hearing will continue on Thursday, 15th March, 2018.

All Posts | Mar 14,2018

Updates on Aadhaar Final Hearing: Day 16

On day 16 of the final Aadhaar hearing, Senior Advocate P. Chidambaram continued his arguments from the previous day, stating that the Lok Sabha speaker’s decision is not final, and is subject to judicial review. He read out relevant excerpts from the decision in Sub-committee on Judicial Accountability vs. Union of India [(1991) 4 SCC 699] on the scope of judicial review. He cited the decision in S.R Bommai v. Union of India [(1994) 3 SCC 1], quoting para 90: “The satisfaction of the President mentioned in clause (1), shall be final and conclusive and shall not be questioned in any court on any ground.”

Mr. Chidambaram submitted that any bill passed in the guise of money bill strikes at the basic feature of the Constitution.

Further, citing Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC 184], he stated that though the validity of any proceeding in the Parliament on the ground of irregularity of procedure cannot be looked into by the court, illegality of procedure can be a ground for the courts to exercise judicial review. He then referred to the case of Mohd. Saeed Siddiqui v. State of U.P. [(2010) 4 SCC 1], wherein Uttar Pradesh Lokayukta and up-Lokayukta (Amendment) Act, 2012, was passed as a money bill. In this case, it was argued that the Bill was passed only by the Legislative Assembly and not by both the houses, thus it was bad in law. The court, however, held that the decision of the Speaker, classifying it to be a money bill, is final and the said decision cannot be disputed. However, Mr. Chidambaram stated that the said decision did not delve into the substantive discussions as to why the impunged Act was declared to be a money bill.

On being asked to read out some excerpts from the case of Mangalore Ganesh Beedi Works v. State of Mysore [AIR 1963 SC 589], Mr. Chidambaram responded by saying that the instead of having a substantive discussion, the said case only makes a conclusion that the validity of the Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202 of the Constitution.

Mr. Chidambaram then moved on to the judgment in Pandit M.S.M Sharma v. Sri Krishna Sinha that if the procedure adopted by the Parliament is illegal and unconstitutional, it will be open to scrutiny in a court of law.

Moving on to his fourth submission, Mr. Chidambaram’s submitted that the upper house in a bicameral legislature cannot be bypassed as it plays an important role in a federal Constitution. He further cited the decision of Kuldip Nayar v. Union of India [(2006) 7 SCC 1], highlighting the significance of Rajya Sabha and its importance in a federal structure of governance.

Mr. Chidambaram further carried on with his submission on the money bill and elucidated the history of money bill and emphasized the restricted domain which constitutes a money bill. He also referred to the Constitution of Ireland and the definition of money bill contained therein to highlight the restrictive nature of money bill.

Mr. Chidambaram then moved on to the debates in Rajya Sabja on Aadhaar bill. He stated that questions with respect to the status of Aadhaar bill as money bill were raised by several Members of the Parliament. He further stated that the petitioner Jairam Ramesh had moved for amendments in the bill which were adopted in Rajya Sabha. However, the Lok Sabha did not consider these amendments and passed the bill in original. Reading the Preamble and the Long Title, Mr. Chidambaram emphasized that the apparent object of the Aadhaar bill was to enact a law which could fit into the requirements under Article 110(1)(c) and (g). Thereafter, he read out section 23(2)(h) of the Act and said that assuming the Act’s purpose was to provide benefits, words “and other purposes” were introduced insidiously in the provision. Further “other purposes” has not been defined anywhere in the Act. He further pointed out a similar example in section 54(2)(m).

At this point, Justice Chandrachud questioned that looking beyond the threshold of justiciability, what were the provisions that were relatable to Article 110. Mr. Chidambaram responded by saying that the question should be whether there is any provision in the Act that does not fall under Article 110(1)(a) to (g). He contended that provisions such as sections 57, 54, 23 go beyond the scope of Article 110, making the bill a financial bill and not a money bill. Justice Chandrachud further asked whether the bill in its entirety had to go or could there be severity of portions not falling under Article 110. Mr. Chidambaram answered that the bill would have to go in its entirety as the provisions are not severable.

Reading out the relevant provisions of the Australian Constitution on money bill, he submitted that Article 55 of Australian Constitution specifically states that in case of a money bill, laws will have provisions relating ‘only’ to money bill and provisions relating to any other matter will have no effect.

He added that in the present case, the provisions make it clear that it was not a money bill, and therefore, it could not have passed the scrutiny of the Rajya Sabha. He further remarked that if this bill could slip through as a money bill, then virtually any bill could in the future. He emphasised that this sets a dangerous precedent as money bill is an extremely narrow subset of financial bill.

Mr. Chidambaram concluded his pleadings by again emphasizing that the Aadhaar bill goes far beyond the intended purpose of delivery of subsidies and is not a money bill.

Senior Advocate K.V. Vishwanathan commenced his arguments, appearing on behalf of petitioners in W.P.(C) No. 1056/2017 and 833/2013. He presented three pertinent submissions:

  1. Collection, storage and use of data which resulted in invasion of privacy;

  2. On validity of Section 59 and;

  3. On exclusionary aspect of Section 7.

Mr. Vishwanathan remarked that the Act was drafted on the assumption that privacy is not a fundamental right, and that Section 59 has to be declared unconstitutional for violating Articles 14 and 21.

At this point, Senior Advocate Arvind Datar intervened and stated that Aadhaar has been made mandatory for obtaining a passport under the Tatkal scheme, which is in violation of Supreme Court’s previous order. He further requested the court to consider extending the deadline for linking Aadhaar. Attorney General K.K. Venugopal retorted that there were other IDs as well that could be used, and the purpose of Aadhaar is only to expedite the process. He said that in case of passport under Tatkal scheme, Aadhaar is required for out of turn consideration of application to expedite the process. He also mentioned that the respondents were strictly adhering to previous Supreme Court orders.

Post the arguments, the bench passed an interim order directing that the order passed on 15th December, 2017 extending the deadlines for linking of Aadhaar stands extended till the final disposal of the matter, and the extension would also apply to passports. However, the extension of deadline does not apply to ‘benefits, subsidies and services’ under Section 7 of the Act.

The hearing will continue on Wednesday, 14th March, 2018.

All Posts | Mar 08,2018

Updates on Aadhaar Final Hearing: Day 15

The arguments for day 15 of the final hearing began with Senior Advocate Arvind Datar pointing out the nature of consent in the PML Act. He stated that the Act mandated the production of consent, failing which the bank accounts would be rendered inoperable, effectively negating any consent involved. Further, he said, there was no option to opt out.

Going on the money bill aspect, Mr. Datar said that Aadhaar was meant only for the purposes mentioned in the objects of the Act and that using it for any other purpose would be invalid. Justice Chandrachud pointed out that the moment Aadhaar was extend for use by private entities, its nexus with money bill is lost, to which Mr. Datar agreed.

He further submitted that the Act was passed as a money bill without any regards to the amendments proposed by the Upper House of the Parliament. He pointed out that the Upper House has recommended the deletion of Section 57 of the Act which was rejected by the Lok Sabha. He stated that had it been passed as an ordinary bill, the recommendations of the Upper House would be considered, Section 57 would be struck down and an opt out clause be included.

Defining consent and free consent in the light of the Contract Act, 1972, he submitted that consent in this case is vitiated as it is not free. He further stated that as per the Puttaswamy judgment, it is the decisional autonomy of an individual to part or not to part with her personal information. He further stressed that it was impossible for a person to survive without an Aadhaar in the present times and that it had intruded the life of individuals from birth to death.

Discussing Section 56 of the Aadhaar Act with focus on words ‘any law’, he stated that if ‘law’ here meant delegated legislation, this section would yield for delegating essential functions, i.e., excessive delegation. Further, if the ‘law’ meant primary legislation, the section would not stand owing to violation of Article 14 and 21.

Justice Chandrachud questioned about the compelling state interest in case of private entities mandating Aadhaar under Section 57. Mr. Datar pointed out that words ‘any purpose’ under Section 57 have gained the meaning of all purpose and not limited purpose.

Mr. Datar then went on to discuss Section 7 and how the approved IDs were needed to get Aadhaar but were rendered ineffective once Aadhaar was alloted.

Going to the Binoy Viswam judgment (Aadhaar-PAN link), he stated that the reason for linking Aadhaar as cited by the respondents was to weed out fake PAN. He then apprised the court of the cases where people are filing their income tax returns by entering zeroes and ones, the same being accepted and refunds processed. He further argued that if the purpose was to eliminate fake PAN, then the linking need not be perpetual and data should be deleted after achieving the purpose, unlike in the present case where data is kept perpetually.

Moving on to his next argument on the pre-legislation actions, he submitted that delegated legislation cannot be ratified by a subsequent legislation when it has resulted in violation of fundamental rights. He said that when it is necessary to encroach upon the fundamental rights of the individuals, a legislation is needed and the same cannot be done via delegated powers.

He then took the court through the interim orders passed in the case. He pointed out that production of Aadhaar was mandatory for entrance exams like NEET and other CBSE exams which was in clear violation of the Supreme Court’s orders. He submitted that despite the orders in place, they were not being followed, this being a clear case of Contempt of Court.

Answering the point on making Aadhaar for NEET, Attorney General stated that it had not given authority to CBSE to make Aadhaar mandatory for exams. He further argued that the interim orders of the apex court would apply only to pre-Act actions and not to the actions undertaken after the Act came into force.

Mr. Datar made his final submission on the deletion of data and urged the court to consider the possibility of guidelines for deletion of data and for opting out of Aadhaar.

The petitioners then pressed for interim relief regarding the March 31st deadline. Justice Chandrachud observed that interim relief had to be considered at the earliest and extension of dates could not be left for the last moment as it would result in uncertainty for the financial institutions.

Senior Advocate P. Chidambaram commenced his arguments on the issue of Money Bill.

He began by questioning how could a legislation bypass the scrutiny of the Upper House by terming it as a money bill. He then went on to read Article 107 of the Constitution pertaining to introduction and passage of bills. He further read Article 117 relating to the provisions on financial bill, explaining when can a bill be termed financial and the procedure to be followed in such circumstances.

Coming to Article 110, he stated that money bill is a subset of financial bill which is a subset of bill. He further distinguished between a money bill and a financial bill. He elaborated that money bill can only be introduced in the Lok Sabha and Rajya Sabha only has recommendatory power and no legislative power. He stated that in such a case, these provisions relating to money bill should be construed very narrowly and strictly in order to ensure that nothing escapes in the guise of money bill.

Further, pointing out the substantive difference between Ar. 117 and 110 -money bill and financial bill, he stated that the use of word ‘only’ was the most important. He said that in case of even a small intrusion, the word ‘only’ gets diluted. He gave several examples on the interpretation of the word, citing Articles 74(2), 163(2), 163(3) and 363.

On the point of finality of decisions, Mr. Chidambaram discussed Article 103(1) and stated that even though the provision stated that the decision of the President would be final, a cumulative reading with section makes it clear that it is the decision of Election Commission, which was effectively taken into consideration. He said that the same interpretation could be applied to Article 110(3) as well.

Lastly, the court passed an interim order in the matter, allowing the applicants to produce any alternative means of identification apart from Aadhaar for NEET, CBSE and other All-India entrance examinations, thereby eliminating the mandatory requirement of Aadhaar.

The hearing will continue on Tuesday, 13th March, 2018.

All Posts | Mar 06,2018

Updates on Aadhaar Final Hearing: Day 9

On day 9 (Thursday, February 8), Senior advocate Kapil Sibal resumed arguments on behalf of the petitioners.

Referring to a news report about Aadhaar being made mandatory to avail old age pensions, Mr. Sibal argued that the absence of infrastructure like electricity or Internet connection excludes individuals from claiming benefits and entitlements. When Justice Chandrachud pointed out that infrastructure will have to be upgraded if it is leading to exclusion, Mr. Sibal answered that exclusion caused during upgradations is also significant.

Advocate Rakesh Dwivedi appearing for the respondents intervened at this point to assert that no one was being excluded due to infrastructure. He said the Aadhaar Act and Rules make adequate provisions for accepting alternate means when Aadhaar is infeasible due to infrastructural issues. Individuals can simply show their Aadhaar card and number, for instance. Additional Solicitor General Tushar Mehta read out a cabinet release in support of this contention, and said that there have been no exclusions at any stage – enrolment or authentication. He added that offline modes of authentication will be available during connectivity problems and that further alternatives are also available in exceptional cases.

Justice Sikri observed that many illiterate or otherwise underprivileged residents might be unaware of options like updating biometrics. Though the ASG assured the Bench that the respondents had taken measures to prevent this, Mr. Sibal argued that these are very serious problems on the ground that cannot be understood by reading the statute. He also said that the respondents had incorrectly interpreted provisions of the Act when stating that infrastructure is a non-issue.

On alternative means of authentication, Justice Chandrachud observed that Section 7 of the Aadhaar Act could be interpreted to concern three things: authentication, proof of possession or proof of application. He noted further that presenting one’s Aadhaar card would be a valid alternative to the routine authentication process under the Section. The Bench noted that this is relevant in determining issues around exclusion.

Mr. Sibal then spoke about the UK’s scrapped biometric ID program, and how it fundamentally changed the relationship between state and citizens. He read out comments from Theresa May (then Secretary of State for Home Department), who called the biometric initiative intrusive and ineffective. Ms. May was also quoted expressing concerns over data breaches and stating that the biometric ID cards would not make people any safer as claimed. UK’s experience was then used to draw a parallel with India, and Mr. Sibal argued that Aadhaar is effectively putting residents and their data at risk. He also referred to the US’ social security number scheme, which addresses many of the same governance needs as Aadhaar without relying on biometrics or ID cards.

Mr. Sibal pointed out that Aadhaar has become much more than an identity program today – an “identity plus” where the “plus” includes metadata gathering and monitoring. Sections 3, 4, 8 and 57, rather than Section 7 of the Act are the key provisions to be considered, said Mr. Sibal. What Section 7 seeks to do could have been done just as well under the Food Security Act, which means the real intent of the Aadhaar Act is to bring every other service under its ambit. The fact that “identity” is less important than “status” when it comes to benefits, as well as the fact that all other forms of ID proof are being discarded in favor of Aadhaar, further illustrate this.

Speaking on identity within the Constitutional framework, Justice Chandrachud observed that the Indian Constitution envisages identity in multiple ways such as gender, religion and so on. Mr. Sibal added that Aadhaar infringes Article 21 of the Constitution as it denies individuals the right to establish their identities in multiple ways as is Constitutionally permissible. He drew attention once again to Israel, which offers a voluntary ID program for citizens to claim services.

This concluded arguments for the day. Next date of hearing is Tuesday, February 13.

All Posts | Mar 06,2018

Updates on Aadhaar Final Hearing: Day 14

Day 14 of the final hearing began with Senior Advocates Arvind Datar and Shyam Divan pressing the court for interim relief, asking for the deadline of March 31st to link Aadhaar with various services to be extended.

Mr. Datar began with stating his main challenges:

  1. On Aadhaar Act being passed as a Money Bill.

  2. On Rule 9 of the Prevention of money Laundering rules, terming it to be violative of Article 14 of the Constitution.

He said that arguendo if Aadhaar was upheld, it could not go beyond the realm of subsidies. He further urged the Bench to revisit the Aadhaar-PAN judgment in view of the privacy judgment. He further highlighted the continuous and blatant violations of the orders of the Supreme Court and stated that these violations should not be condoned.

Commencing his first argument on Aadhaar-bank linking, Mr. Datar argued that the Master Directions issued by RBI in 2016 for KYC purposes was a comprehensive circular issued under the PMLA itself and covered all the issues with respect to the Bank Accounts. He stated that PMLA rules were in contradiction of the RBI circular. He pointed out the safeguards existing in the master circular and stated that the circular allowed the option of any of the six IDs as a proof which was in direct conflict with the PMLA rules which made the production of Aadhaar mandatory.

He further submitted that Aadhaar is only required to establish the identity of the individuals and thus, it cannot be used to establish the identity of the company.

Mr. Datar then moved on to read the impunged rules which said that in case of non-linking, the accounts would become inoperational and termed it to be draconian. He stated that it was in violation of Supreme Court order making Aadhaar voluntary and limited to only specific schemes.

He further submitted that the rules violated Article 300A of the Constitution, depriving a person of his property. When Justice Chandrachud pointed out that the property was not being forfeited, Mr. Datar clarified that deprivation of property was taking place under the said Article, which could be temporary or permanent in nature.

He further argued that even if Aadhaar Act was assumed to be valid, it was meant to be free and voluntary as also specifically mentioned on the enrollment form. However, in the present scenario, Aadhaar has been made mandatory for everything, he said.

Commenting on the mandatory aspect, he said that Aadhaar Act recognises the an individual’s choice to obtain Aadhaar. However, in case of PMLA rules, no choice of Aadhaar is provided, thus discriminating between people on the basis of their choice which cannot be permitted. He said in case a person wanted to exercise his valid choice of not taking Aadhaar, he run the risk of his bank account becoming inoperable. He remarked that the present PMLA rules violated every possible aspect of Article 14 including classification, equal treatment as well as manifest arbitrariness.

Mr. Datar then went into the PMLA act and its objective and stated that any rule made under the Act must have a nexus with the Act. However, in the present case, rule 9 has no nexus with the Act. He then went on to read the call drops case and recalled how a set of regulations on call drop charges were struck down as it was inconsistent with an earlier regulation enacted under the same statute.

Justice Chandrachud pointed out that the Master circular of RBI was released under the Banking Regulations Act while the rules were enacted under the PMLA act. He said that the two were enacted under two different legislations unlike the Cellular Operators (Call drop case). In response, Mr. Datar brought the attention of the court at the source of the power, saying that circular derived its authority from both PMLA rules as well as Section 73 of the Act. Thus, the call drops judgment applied to it squarely.

The arguments will continue on 7th March, 2018.