Day 13, (Thursday, 22nd February 2018) of final hearing began with Senior advocate Gopal Subramanium continuing his arguments on behalf of petitioners.
Referring to Article 243G(b) of the Constitution of India, he submitted that the Article provides some standards for implementation.
He further submitted that the Puttaswamy judgment provides for identifying eligible recipients, however the Aadhaar Act does not identify eligible recipients, instead it provides proof of identity. Mr. Subramanium then stated that nobody should be compelled to part with their biometrics without committing an act of criminality or an offense. He then referred to the decision in case of Selvi v. State of Maharashtra which regarded taking of fingerprints as invasion and argued that biometric authentication should be considered only in case of commission of crime.
Mr. Subramanium then started referring to Indian cases where linkage of Aadhaar with various schemes was suspended. He mentioned the NERPAP program of Election Commission which aimed at “purification” of electoral rolls by linking it with Aadhaar. He mentioned that in this case a three Judge Bench of the same court had issued a note, post which the program was suspended.
Mr. Subramanium then submitted that the ideology behind Aadhaar bank linkage is to prevent money laundering however private entities are profiteering out of profiling based on Aadhaar data. He said that National Payments Corporation of India (NPCI) is making this database available to private parties and that there’s no limitation on what information can be stored in State Resident Data Hubs (SRDH). He stated that anyone can source a profile of an individual from the State Resident Data Hubs. He further went on to read an intervention application in which the applicants said that their business models required Aadhaar to function.
On this point, Justice Chandrachud asked Mr. Subramanium to furnish credible documents to show the extent to which the private parties had access to the database and also questioned whether the private parties have access to biometric information. Mr. Subramanium responded to the same raising the point of convergence. He submitted that Aadhaar bridge is an invitation to business which would be done through an agent. He stated that authentication agencies were not government agents, they also included private players.
Justice Chandrachud intervened again to question how were the private players accessing the data as Section 57 only allowed for authentication by the private entities. Mr. Subramanium replied to this question saying that the entities can gain access to the profile of the individuals due to seeding of Aadhaar with multiple databases.
Mr. Subramanium then read out multiple definitions in the Act including that of ‘Aadhaar number holder’, ‘biometric information’ and ‘core biometric information’. At this point, Justice Chandrachud questioned about biological attribute and asked if DNA could be a biological attribute. Mr. Subramanium replied in affirmative stating that DNA is a biological attribute to which Justice Chandrachud remarked that the definition of biometric information is open-ended.
Mr. Subramanium then read out various sections of the Act along with regulations on enrollment. He explained that the burden of updating the information in CIDR is on the individuals. Justice Chandrachud remarked that the government can’t be expected to keep a track of all the changes. To this, Mr. Subramanium questioned how will an individual be aware when she’s due for an update. Justice Khanwillkar intervened saying that in case of an authentication failure, the person can go for an update. Mr. Subramanium responded highlighting the fact that an authentication failure is viewed as the person being a ghost or a fake these days.
Mr. Subramnium then moved on to Section 31 which provides for alteration of demographic or biometric information. In the light of this provision, he pointed out that in case of loss or to make changes to the biometric information subsequently, the individual will have to request UIDAI to make alterations in his records.
Mr. Subramanium then submitted that the wordings of regulation 28, which provides for the security of the information, are in the nature of assurance and are not emphatic. He then mentioned that regulations 27 to 29 are very poor safeguards for the safety of information. He then furthered upon it that in case of an authentication failure, the usual assumption is that the biometrics were captured validly at the time of enrollment and now the person is trying to duplicate them.
Mr. Subramanium then argued that the architecture of this Act is completely deleterious to human dignity. He read out Section 33 on disclosure of information in certain cases pursuant to court order. He pointed out that the individual will not be given opportunity of hearing, instead the authority will be given the data.
Mr. Subramanium then went back to read Section 7, and pressed upon the use of words like ‘require’, ‘undergo’, ‘furnish proof’- and stated that they impose a condition. He further stated that linking of mobile phones, banks, PAN with Aadhaar does not get covered under this section. He also stated that Section 7 does not prescribe that there must be real recipients of the benefits. He submitted that Section 4(3) proves the Act is for universal coverage and thus, is ultra vires of Constitution.
Mr. Subramanium then moved to his next argument and said that due to technology, the possibilities of profiling are very strong. He handed over the compendium and read on about big data, meta-data, and the nature of big data’s analytics tools and it’s unpredictability. He remarked that ‘liberty cannot be measured in coffee-spoons.’
Mr. Subramanium then submitted that the algorithms are unpredictable in nature and UIDAI does not have control over them. He further pointed out that there was no guarantee about the safety of algorithms. He mentioned that with big data, one can get details of the individuals as well as their geographical, especially if combined with other data sets. He furthered upon this argument saying that in the absence of a data protection law, the injury or vulnerability is heightened and no assurance can lessen that.
Mr. Subramanium then argued that there’s an uncertainty associated with biometric systems, they’re probabilistic in nature and there is always a risk of error. He referred to affidavit of Mr. Wilson and highlighting the extent, spoke about babies being enrolled into Aadhaar. He concluded this argument saying that we shouldn’t ever go down that road.
Mr Subramanium then referred to a module submitted by the petitioners which contained numerous instances of exclusions by Aadhaar. He highlighted the fact that in Jharkhand, exclusion was as high as 49%.
He then read out a letter of a Common Service Centers (CSC), an agency during the enrollments, with which MoU was ended due to corruption and non-observance of procedure. He also referred to L1 contracts and made the following submissions:
The foreign entity has total control over the algorithm;
The data is with L1 even though UIDAI may have ownership;
L1 can subject it to such use, analysis as may be required.
Mr. Subramanium then referred to the interim orders issued in the matter so far and submitted that everyone including the government is bound by the orders of the Court, however, the government did not obey those orders. He stated that there has been a continuous violation of those orders which has been brought to the notice of the court at several occasions. He said that those violations were now resulting in starvation deaths. He argued that the Court must grant exemplary damages and compensation to those who lost lives or were otherwise excluded due to want of Aadhaar.
Mr. Gopal Subramanium then concluded his arguments requesting the court to extend the deadlines as had been mentioned in its order dated 15th December, 2017 since the matter is still pending.
Senior Advocate Arvind Datar, who is appearing on behalf of petitioners in W.P. 1017/2017 then commenced his arguments. He mentioned that he had 7 basic points to cover. CJI Justice Mishra recommended Mr. Datar to submit a note on points to be covered and then elaborate on those, 6th March onwards.
This concluded arguments for the day. Next date of hearing is Tuesday, 6th March, 2018.