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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

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 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 05,2018

Aadhaar Final Hearing: Index

On Wednesday, 17th January 2018, a five-judge bench of Supreme Court began its final hearing 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, that challenge the overall validity of the Aadhaar scheme on various grounds. Earlier on 14th December, 2017, a five-judge Constitution Bench of the Supreme Court of India had heard arguments for interim relief and an order was passed in the matter. The summary of the arguments can be read here and the order can be read here.

The constitutional bench for the final hearing comprised of Chief Justice of India Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan.

Links to our detailed notes from the daily proceedings are given below:

All Posts | Feb 16,2018

Updates on Aadhaar Final Hearing: Day 10

On day 10, Mr. Kapil Sibal resumed his arguments and read out provisions from Israel’s biometric ID law dealing with definition and purpose of biometric databases, emphasizing that the ID cards are purely voluntary. He added that under said law, biometric data may be used only for the purpose for which it was collected. Further, access to the database is allowed only for specified purposes, and the law makes no provisions for meta-data. Comparing the Israel’s biometric ID law to the Aadhaar Act, Mr. Sibal noted how Aadhaar is mandatory and life-long, and how consent is illusory. Though the Aadhaar database can only be used for purposes authorized by law, “national security” is often misused as a legally authorized purpose in India. To emphasize its broadness, he pointed out that national security is grounds for even deactivating Aadhaar altogether, and added that several NGOs have been targeted citing national security concerns in the past.

Mr. Sibal moved on to his first proposition of the day, and began by saying that information is power. He then referred to the SC’s Puttaswamy judgement on privacy that equated information to knowledge, and read out excerpts from a Harvard Business Review article that spoke about how data-driven services like WhatsApp are so highly valued because of the information they provide. He pointed out that information, while inconsequential in silos, can still provide comprehensive pictures of personalities when aggregated.

Referring once again to the Puttaswamy judgement, Mr. Sibal admitted that the State does have a right to institute a national ID program, but it is necessary when doing so to ensure that said IDs are not made publicly available. With Aadhaar, we have public interest on the one hand, and personal information in public domain on the other. However, it cannot be rightfully claimed that linking Aadhaar to things like travel itineraries and health information is in public interest. Mr. Sibal said that the State cannot choose how one proves one’s citizenship – that right is undeniably reserved for the citizens themselves.

For his second argument, Mr. Sibal focused on the fact that Aadhaar is effectively mandatory despite contrary claims in the Act. Pointing to provisions like Section 32 (authentication logs), Section 26 (metadata) and Section 57 (use of Aadhaar for other purposes), he said it is clear that the true intent of Aadhaar is to establish itself as an exclusive proof of ID, which can be used for purposes not covered by the Aadhaar Act. If consent is necessary for Aadhaar authentications, but entitlements can be had only through Aadhaar, what is the point of obtaining consent to begin with, he asked.

Mr. Sibal’s third submission was about concentration of power resulting from massive amounts of personal data held by a single entity, and he read out portions of the Puttaswamy judgement to support his contention that such concentration of power is undesirable. He also added that the respondents must provide copies of audit reports from audits conducted under the Aadhaar Act.

Speaking next on proportionality, Mr. Sibal said determinations of legislative proportionality hinged on two considerations: (1) objectives of the legislation (2) whether the legislation is the least restrictive way to achieve said objectives. In this case, he said, the scope of Aadhaar has no nexus with the entitlements it seeks to streamline. After a brief discussion on the South African “culture of justification” initiated by Justice Sikri, Mr. Sibal submitted further that the very concept of Aadhaar is inconsistent with the doctrine of proportionality. He highlighted several provisions from the Aadhaar Act that confer wide powers on the UIDAI.

Mr. Sibal then questioned the prudence of entrusting personal data with the State who could not even prevent the pilferage of food grains. He also pointed out that it would be unfair to deny entitlements to deserving non-residents merely for want of a certain proof of ID. As most entitlements flow from Part III of the Indian Constitution, he said denial of entitlements would be tantamount to denial of fundamental rights, and would be unsustainable under the tests of Article 14 (right to equality) or Article 21 (right to life and personal liberty) of the Constitution.

Mr. Sibal then referred to the Puttaswamy judgment once again in context of making biometrics a pre-condition for availing entitlements, and re-iterated that imposing a condition to exercise a fundamental right is a violation of that fundamental right. Defences such as lack of infrastructure will not apply.

Mr. Sibal also questioned the need for Aadhaar when Section 14A of the Citizenship Act already makes provisions for national ID cards issued as proof of citizenship. Identity may be a like an umbilical cord to a citizen, but his/her primary identity must not be that of an Aadhaar card holder, said Mr. Sibal. The opinion of Justice Das in In Re: Kerala Education Bill was also read out to support Mr. Sibal’s contention that Aadhaar cannot be made mandatory. He termed it unconstitutional to force future members of the society like children to surrender their rights to the Aadhaar system.

Justice Chandrachud intervened at this point to ask why can the government not require the individuals to furnish proof of identity to avail entitlements. When Mr. Sibal offered in response that one’s status as a citizen is itself the basis for claiming entitlements, CJI Misra said it might be necessary at times to prove that status. Mr. Sibal answered that Aadhaar is not the only means to establish status, and that one must have the liberty to use any method of ID verification for claiming entitlements.

As CJI Misra raised an objection to bartering one fundamental right for another, Justice Chandrachud clarified that Mr. Sibal’s argument was about the unconstitutionality of providing just one means of identity verification. Justice Chandrachud also asked if it would be true to assume that everyone is expected to have at least one form of ID verification, which Mr. Sibal answered in the affirmative. He added that individuals must have alternate means to avail entitlements in the absence of a valid ID proof.

Mr. Sibal agreed with the bench that choice was the core of the argument and that the individuals must have a choice to decide how they want to establish their identity in a reasonable and lawful manner.

Mr. Sibal also referred to multiple schemes where Aadhaar is mandatory (bonded labour scheme, national child labour scheme etc.), highlighting them as instances of rights violations.

Mr. Sibal’s final submission was on pilferage of food grains. He called this a constitutionally invalid scheme, and pointed out that it does not stop leakage of food grains, instead deserving persons have been excluded. He contended that the scheme is disproportionate.

To Justice Sikri’s question on the existence of multiple passports/other IDs, Mr. Sibal answered that there have also been plenty of reports of duplicate Aadhaar cards and it is an issue which should be dealt by law. More importantly, he said that this does not justify mandating the production of just one specific ID.

With this, Mr. Sibal concluded his arguments.

Senior Advocate Gopal Subramaniam argued next for the petitioners, and he started by submitting that the Constitution has to be abided by even in the face of rapid advancements in technology. Referring to the Puttaswamy judgement, he said there should be no interference with fundamental rights. He further submitted that privacy is a state of being, which cannot be easily described, and that intrusions on this right must be minimal. It is important to ascertain the true purpose of the Aadhaar database, said Mr. Subramaniam. He added that there are alternative means to fulfill the purposes that Aadhaar seeks to achieve, and that the Aadhaar Act is dangerous, attacks State accountability, and has the effect of dis-intermediating the State.

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

All Posts | Feb 07,2018

Updates on Aadhaar Final Hearing: Day 8

On Day 8 of the final hearing, continuing his arguments on behalf of the petitioners, Senior Advocate Kapil Sibal read out Section 8(3)(c). He stated that the definition of ‘authentication’ says that a person can only use demographic or biometric information for authentication while Section 8 talks about alternatives. He contended that the law was poorly drafted. However, Justice Chandrachud pointed out that Section 8(3)(c), which was said to make room for alternate authentication methods, uses the term “identity information”. While it may be true that “identity information” is currently defined to include only Aadhaar number, demographic and biometric information, this is an inclusive definition that may be expanded upon in the future, said Justice Chandrachud.

Mr. Sibal then said that no other country except Israel has a centralized database like Aadhaar. Most jurisdictions pursuing smart governance use smart cards that contain biometric information i.e. without storing such information in a central repository. He also argued that Section 57 of the Aadhaar Act only provides an option (as opposed to a compulsion) to use Aadhaar for identity verification purposes.

Mr. Sibal spoke next of how collection of demographic and biometric information is done by private entities and not the state, and added that there can be no assurances regarding data security in the digital world. He then handed the Bench a note on meta data, and pointed out that meta data can provide all information on data transmissions except the core data itself. This means that linking Aadhaar to rail and air travel for instance, can provide detailed insights into an individual’s travel patterns.

After handing in another note on some technical aspects of Aadhaar, Mr. Sibal drew attention to a report by the Reserve Bank of India, which had outlined the dangers involved in maintaining centralized databases. Justice Chandrachud intervened at this point, saying the report in question was more of a staff paper that served as a statement of care rather than an admission of vulnerability.

Mr. Sibal then spoke about the dangers posed by leaked biometric information, arguing that information like fingerprints can easily be cloned using leaked data. This in turn can be used maliciously, for instance to implicate an individual of a crime. To Justice Sikri’s query about the ubiquity of fingerprint scanners in modern electronic devices, Mr. Sibal said the security risks are substantially lower as such devices generally store biometric information locally i.e. on the devices themselves.

Mr. Sibal then went on to recap the controversy around Airtel’s payment wallet and Aadhaar-based subsidy transfers, and spoke further on spatial privacy, the legal lacunae around ownership of data, and frequency of Aadhaar authentication failures among other things. On authentication failures, he highlighted the problems faced by children, the elderly and manual labourers, all of whom have fingerprints that are subject to change over time.

Hearing will continue on Thursday, 8th February, 2018.

All Posts | Feb 06,2018

Updates on Aadhaar Final Hearing: Day 7

Today, on Day 7, Senior Advocate Shyam Divan continued reading affidavits of Siraj Dutta from the previous hearing to emphasize on the point that, Aadhaar has led to exclusion, death and loss of dignity. He also stated that ‘real choice’ formulates realm of a true democracy and Aadhaar ecosystem leaves people with no alternative method for identification.

When Justice D.Y Chandrachud queried about the rate of penetration of the internet in India today to understand the points of information leakage in Aadhaar database. Mr Divan replied saying that the Aadhaar insubstantially prevents misuse and leakage. He further pointed out about the PoS machine’s ability to memorize, which enables it to work at any other place where there is a source of internet, allowing leakages of data.

Justice Chandrachud stated that despite of Aadhaar, the citizens continue to rely upon the PDS distributor. He further remarked that the above-mentioned argument does not in itself suffice a constitutional ground however Aadhaar is capable of exclusion and might be a ground under Article 14.

Mr. Divan then submitted that Aadhaar does not allow people with an option to opt-out. If a person has given her biometrics, she should have a concomitant right to opt out. He referred to affidavits from different states including Meghalaya which enlist reasons as to why the people do not wish to continue with Aadhaar and wanted to opt out of Aadhaar and have all their enrolment and authentication records deleted.

Justice Chandrachud intervened questioning about the status of enrolment in North East. Mr Divan responded that the enrolment process in North-Eastern states is very slow. As a result, there is an exemption from Aadhaar in North-Eastern states.

Mr. Divan then read out another affidavit of Dr. Rakesh Mohan Goel. He further emphasized upon the inherent design faults in the Aadhaar infrastructure. There was a mention that the biometrics can be stored and shared by the agencies in the Aadhaar ecosystem. The audit report annexed with the affidavit also laid down six ways of hacking into Aadhaar database and that UIDAI would have very little control over this. He also referred to Rakesh Goel's affidavit and said that private entities can easily avail, store and log biometrics of Indians enrolled with Aadhaar.

Justice Chandrachud then questioned about the procurement process of authentication machine and whether anything like a credit card fraud is possible with Aadhaar. Mr. Divan responded to it saying that UIDAI lists out specifications for devices, however purchases are privately made. In order to reply to question of fraud, Mr Divan referred to Rakesh Goel's academic article to explain the possibility of fraud with Aadhaar. He further stated that the basic design of Aadhaar is so faulty that the biometrics cannot be protected. Between the procuring data and encrypting the biometrics, there is always a point where the biometrics can be hacked. He also said that Aadhaar is a safety and security issue.

Mr. Divan then cited news report from Surat and explained the ease with which fingerprints can be cloned. He also mentioned an RTI reply from 2017, which said that 6 crores 23 lakhs enrolments have been rejected due to biometric duplication. In the light of this RTI, he pointed out that since the Aadhaar authentication system is based on probabilistic method, with expansion of the database rejections will also increase. He also read an affidavit from Reetika Khera which talked about biometric authentication failure at a tribal school, as a result of which students were not marked present. He further stated that they are creating records for an entire lifetime, starting from school without any statutory sanction.

Mr. Divan then moved to address the question of personal autonomy of an individual and how can one exercise the same in digital space. He read out the chapter on the right to bodily integrity from Oxford Handbook of Jurisprudence which mentions that individuals have an innate right over their bodies. He furthered upon this saying that every individual is a self-authenticating source of valid claims and every individual that exists in flesh and blood is elemental to Article 21. He also said that, where the state has legitimate interests in identifying, such instances should be clearly and narrowly defined. Senior Advocate ended this submission with Mahatma Gandhi on the Transvaal Ordinance mentioning "this degrades free individuals."

Mr. Divan then started with his final submissions. He started with saying that personal autonomy is at stake and to ensure personal autonomy, biometrics are required to be protected. Then, he raised the point of trust between citizens and State, mentioning that the programme was against dignity of the individuals. He also raised the point of rule of law and the way this program was initiated and executed. Lastly, he spoke about state surveillance.

With this submission Senior Advocate Shyam Divan concluded his arguments.

Senior Advocate Kapil Sibal, who is appearing on behalf of petitioners in W.P. (C) 841/2017, W.P. (C) 966/2017 and I.A. No. 122999/2017 in W.P. (C) 1014/2017, then commenced his arguments.

He began with highlighting the importance and far-reaching consequences of the case. He stated that even children are required to have an Aadhaar. He stated that information is the most important tool in the world. Mr. Sibal said that he agreed with the Statement of Prime Minister Narendra Modi made in Davos that he who controls the data, controls the world.

He argued that Aadhaar Act was akin to a Right to Information Act for citizens to make individuals rather than State transparent and accountable. He argued that every technology is prone to hacking and there is no technology that is safe in the world. He further stated that there is no technology in the world that has not been misused. He remarked that a technology that can benefit the mankind can destroy it as well. Coming to the present case, he stated that there is no other case which has such broad ramifications impacting not just the individuals but also the future of the country.

Mr. Sibal then submitted that in case of Aadhaar, an individual has no choice- to show alternative means of identity. He stated that the heart of Article 21 is choice which is absent in the present legislation. He further stated that as per Article 21, the process and substance of any measure undertaken by the State must be reasonable. However, he said that this programme was procedurally unreasonable.

Pointing out the ramifications that Aadhaar will have on criminal justice system, Mr. Sibal pointed out that the State will already have all the data necessary to incriminate an individual, thus effectively wiping out Article 20(3) of the Constitution.

Mr. Sibal then put forth his critical propositions as under:

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

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

  3. Such level of assurance is impossible to obtain in the digital space.

  4. Biometric, core biometric and demographic info of an individual, once part of the digital world is irretrievable.

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

  6. The move from an information economy to creating an architecture for an information polity has far reaching consequences impacting the most personal rights, protected by the right to privacy.

In response to a query of Justice Chandrachud on mandatory nature of Aadhaar, Mr. Sibal read out Section 3 stating that Aadhaar is an entitlement. He further read Section 7 of the Aadhaar Act and said that this particular provision makes Aadhaar mandatory.

Justice Chandrachud pointed out that Section 7 only covered the benefits, services whose expenditure was incurred from the Consolidated Fund of India while for rest Section 57 was in place. Agreeing with this observation, Mr. Sibal referred to the parallel legislations including Income Tax Act, PMLA rules which make Aadhaar mandatory. He stated that these were not enacted under Section 57.

Reading Section 8 of the Act, he stated that consent is fully illusory. He said that the Central Identities Data Repository (CIDR) is controlled by a foreign entity.

On being asked by Justice Chandrachud as to who is a requesting entity, Mr. Sibal responded that anyone could become a requesting entity who submits authentication requests.

Justice Chandrachud remarked that there Section 8(3)(c) provided for alternatives and did not make Aadhaar to be requested mandatorily. Mr. Sibal responded that Section 8 provided only 3 alternatives- biometric, core biometric or demographic information. However, Bench disagreed with such an interpretation, to which Mr. Sibal said that this is not an act for alternatives but an act for Aadhaar.

Mr. Sibal then questioned on how could an Aadhaar number tell whether an individual is a terrorist or a money launderer unless it provided more information about the individual. He further read out the authentication regulations specifying the authentication data to be stored and questioned about the ‘metadata’ that was also required to be stored.

Referring to the Aadhaar enrolment and update regulation, he questioned if it were a money bill.

Mr. Sibal referred to the Bench’s observation that possibility of misuse of power is no ground for unconstitutionality, saying that this was an exception to it. Finally, he stated that this case involves very unique issues and unless one understands the power of technology, one cannot decide them.

The hearing will continue on Wednesday, 7th February, 2018.

All Posts | Feb 02,2018

Updates on Aadhaar Final Hearing: Day 6

The hearing for day 6 began with Mr. Shyam Divan, counsel for petitioners, submitting a note on the concept of client IP and device IP. While explaining the significance of IP Address, he showed the court as to how an IP device can be used to know the approximate location. He further explained about the end to end traceability requirement in the devices registered with UIDAI.

Justice Chandrachud gave the example of an individual having multiple interfaces with the State such as tax, electricity bills. He stated that each of these interfaces enable the government to track the individuals. He asked that if PAN was required to be used instead of Aadhaar, how would it be different from the current situation. He further questioned if it was the centralization of data which makes Aadhaar unconstitutional.

Mr. Divan, agreeing to Justice Chandrachud on centralization of data, stated that normally, a single entity has the information. However, present case poses the problem of aggregation of data. Referring to an ECHR judgment in the case of Digital Rights Ireland, he said that you cannot even maintain logs. Pointing out the difference between utility provider knowing the location and centralization of data, he said that centralization of data facilitates complete tracking of an individual.

Moving forward, Mr. Divan addressed the point on multiple identity cards. Taking the example of PAN cards, he said that by giving an identity card, an individual is establishing her identity and availing benefits. He said that in such a scenario, there would be no question of surveillance.

He stressed that by surveillance, he did not mean being watched from behind the screen but about the architecture of the program.

Justice Chandrachud again intervened saying that even the banks maintain a central repository of all the transactions. He said that we are constantly surrendering our identity for various services, which even if by choice, creates a central database. He questioned that if an individual is surrendering her identity to various private entities, then would it make any difference if the State is collecting information of the individuals. He further asked if the collection and use of such data were governed by norms, would that solve the problem.

Mr. Divan responded by saying that the question here was not of checks and balances but whether the Constitution allows for such a surveillance State. He said that in this case, the whole architecture is of pervasive surveillance.

Mr. Divan then resumed his point on limited government. He read out the judgment in the case of KT Plantations case wherein rule of law was held to be an implied limitation on government power. He said that the State cannot deny an individual her entitlements when she has alternative ways of identification.

On the issue of exclusion, Kapil Sibal stood up, referring to a Planning Commission Report in 2005 which stated multiple factors for exclusion while Aadhaar gave a solution for just one of them. He stated that the Aadhaar Act was based on the principle of ‘One nation, One identity’.

Justice Chandrachud intervened to say that the issue of financial exclusion should also be discussed to which Mr. Divan replied that another senior counsel would discuss it in detail. He stated that that had affidavits of people on ground who were facing problems and exclusion due to Aadhaar.

He read out the portions of judgment in case of Nandini Sundar v. State of Chattisgarh on Constitutionalism. He further quoted President Ram Nath Kovind on trust between the State and the citizen.

Mr. Divan then went back to his submissions on rule of law. Handing over a note, he explained how Aadhaar violated the concepts of both rule of law and good governance.

He submitted how UIDAI had proceeded to collect biometric information of individuals without any statutory norm. He stated that the scheme had been continuing since 2009 without any statutory backing despite several judgments on this point. He submitted that it is inconceivable that we could have a centralized registry which can record transactions for lifetime. He said that such an action would be ultra vires Part III.

Summing up his arguments on rule of law and limited government, he stated that in a free and liberal society, routine transactions cannot be made conditional on barter of biometric information.

He further said that in a limited government, an individual must have choices in both interaction with private individuals as well as the State. Another important aspect, he pointed out, was the idea that an individual could do something in their space without the State knowing about it.

He then dealt with the concern raised by the court regarding justification of Aadhaar. He said that there were two justifications being forwarded by UIDAI for Aadhaar- first, Aadhaar will give millions of people who do not have an identity, a means of identification and second, enormous amount of financial savings due to Aadhaar by plugging leakages.

He stated that these claims were false.

With respect to the first point, he submitted that Aadhaar enrolment required some pre-existing identity. In case it was not available, an introducer system was required. Forwarding the statistics regarding enrolments through introducer system, he stated that this system was used only for 0.03% of the people. He stated that enrolment of 0.03% of people cannot justify the use of such an invasive system as Aadhaar for millions of people.

On the second point of savings, Mr. Divan submitted that the Union had placed reliance on the World Bank Report which estimated that Aadhaar has resulted in savings of 11 billion dollars per annum. He stated that these were exaggerated claims. He further mentioned that the Chief Economist and Senior Vice President of World Bank, Paul Romer has resigned from his position for the reason that there was no integrity in the data.

He pointed out that the World Bank report made reference to an article, however, that article made no such claims. Discrediting the report, he said that the article used the figure for the total disbursal from the schemes and did not mention about savings.

Further referring to the savings under MGNREGA scheme, he presented statistics which clearly showed that they were either heavily inflated or incorrect.

Mr Divan referred to an RTI response of UIDAI which mentioned that the savings were in terms of increasing the efficiency and decreasing the delay and not the actual financial amount. It did not mention anything about the fraud.

Finally, coming to the LPG subsidies, Mr. Divan stated that CAG had expressed its concerns over the figures mentioned. He further pointed out the inconsistencies in the savings shown in the UIDAI affidavit and the minutes of cabinet secretariat.

Hearing will continue on Tuesday, 6th February, 2018.