By Vidyut
The second day of proceedings in the Supreme Court on the constitutionality of Aadhaar began with Advocate Shyam Divan presenting diagrams showing the distinction between deterministic and probabilistic methods of identification and the moments of enrolment and the moments of authentication. Mr. Divan pointed out that machines used for authentication were of lower quality.
Justice Chandrachud remarked that they might even be unreadable in the case of manual labourers or ageing. Mr. Divan agreed.
He said that he would finish the technical presentation, take the Court through the privacy judgment, and then the Aadhaar Act. There were three problems: the integrity of the process, the integrity of the information, and a pervasive violation of fundamental rights. He would address three issues pertaining to fundamental rights: privacy, autonomy, and compelled speech.
Mr. Divan brought up the question of integrity of process of the UIDAI and informed consent for the enrolment of Aadhaar. He showed the court the enrolment form and pointed out that there was no mention on the form of the enrolment being voluntary, no mention of biometrics, no verification, no signature of enroller or enrollee, no counselling, no purpose stated for the collection of the information.
Referring to a question by  Justice DY Chandrachud yesterday regarding limited purpose, Mr. Divan highlighted that this programme, by design, is a general purpose database of identity data. A discussion followed regarding the consent to share the data and Mr. Divan referred to an affidavit on record that says the software would not take no for an answer.
Mr. Divan then brought up a point about delegating a core sovereign function – even assuming the state can do it according to the Indian constitution (challenged yesterday) – of collecting biometrics of all citizenry to private persons and termed the state compelling citizens to give all personal sensitive data to random players as absurd.
Mr. Divan brought up the sting operation reported in India Today and Mail Today that showed that the enrolment agencies were selling the data they received on the forms.
Moving on, he pointed out the section on consent in the enrolment form, which in reality was merely a statement that the information furnished was correct and not consent to share the data further at all. He also pointed out that the Union government had been unable to answer to the question of how many had said “no” for further sharing of information (implying that the consent or lack of it was not recorded and thus adhered to).
Justice DY Chandrachud and Justice Sikri wanted to know how different that was from people giving their address proof to other private entities for insurance, credit card company and so on. Mr. Divan replied that there is no problem per se with an individual voluntarily giving private information. The point was that they were being asked to part with information to someone they not know and had no contractual relation with.
“The point is that the private party is so much outside the control of the UIDAI that they can use it for their own commercial purposes. The problem is the process is compromised – that is what distinguishes it for example the Census Act.” said Mr. Divan.
Justice DY Chandrachud asked “what were the nature of safeguards to ensure that the information was not purloined?” and mentioned the case of M S Dhoni’s Aarhaar card details being leaked and the lack of coverage of Aadhaar in states like Meghalaya. He asked about the option to opt-out
Mr. Divan read out the affidavit of Nachiket and Ankita Anand describing how they were coerced into enrolling for Aadhaar and not allowed to withold consent for their information being shared further and how the Supreme Court orders were violated with impunity by the state authorities such as the SDM and ADM.
Mr. Divan explained that only 0.003% of enrolments were made through the introducer system, showing that Aadhaar was the first identity document for a very small percentage of the population.
Mr. Divan then read out a list of enrollment agencies, showing how all sorts of people were made enrolment agents. “Sagar Foods” “Chirag Constructions”…
Session 2
Mr Divan read out the statement of Minister RS Prasad in the Rajyasabha on April 10, 2017 that 34,000 enrolment operators had been blacklisted. “These operators tried to pollute the system or make fake Aadhaar cards.” He pointed out that the number was 49,000 as of September 12, 2017 (drawing attention to an increase of 15,000 since April)
Mr Divan next presented the Registrar handbook (2013) and highlighted the KYR+ and how Registrars were allowed the freedom to collect additional information beyond the Aadhaar enrolment data required by the UIDAI. (Ironically, while this was being presented in court, a Union government press release today explicitly permited this same additional data collectionagain)
Mr. Divan emphasized the part of the Handbook where it says that Registrars must retain biometrics and contrasted it with UIDAI’s contrary statement on affidavit and in public statements of late that no biometrics are ever retained. He explained further definitions – verifier, introducer, operator and so on.
Then reads the qualification for verifier introducer operator etc.
Presenting the MOU between the UIDAI and the Delhi Govt, from 2010, Mr. Divan explained that this was the first time the word biometric was used with reference to UIDAI’s mandate to issue identification based on demographic and biometric information. “The UIDAI will be conducting proof of concept and pilot programmes.” “UIDAI shall develop prescribed standards for the biometric fields.”
Justice Chandrachud wanted to know whether the registrars were all government agencies, to which Mr. Divan explained that there was no such restriction and they could be private bodies as well.
Mr Divan then pointed out Article 299 of the Constitution and said that the MoUs were not even contracts in view of Article 299 (“All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be…”) “This is the palpable lack of integrity in this project for all these years. This denuded the rule of law and erodes governance. That is why you now have a situation where 34000 operators have been blacklisted.”
Justice Khanwilkar said that Aadhaar Act retrospectively validates all this.  To this, Mr. Divan replied that you cannot have a retrospective validation of the violation of fundamental rights. He said he would address this later.
Justice Chandrachud wanted to know how the registrars were paid. Mr. Divan read the latest statement on the per enrolment fee that agencies were paid. He also detailed the recent case of fake Aadhaars in Kanpur and outlined the modus operandi.
Mr. Divan then illustrated how the Aadhaar enabled round the clock surveillance and showed an illustration of the “cradle to grave” ubiquity of Aadhaar – from birth certificates to school, to university and so on till the death certificate.
He displayed a chart on the convergence and link of various databases with the UID and explained what such homogenised access would entail and read from the 9 judge Constitution Bench judgment on privacy. Paragraphs 23,24,27,32,34,35,38 (right to be let alone) 41 through 96 (privacy under article 21 and part 3), inalienable rights under 120-121 and 103 107 on rule of law were read out.
Mr. Divan proceeded to talk about international obligations, the constitution as a living instrument and privacy not being an elitist construct. He emphasized that in the modern era privacy was endangered not just by the state, but by private companies as well and that there was a positive duty on the state to ally with and protect citizen privacy.
Mr Divan referenced the part of the privacy judgment that referred to the American SC case of US v Jones, which dealt with putting a GPS system on a car and pointed out Justice Sotomayor’s concurring opinion in US v Jones, which observed how you no longer need physical interference to violate privacy. Information about a person’s transactions is enough to give a complete profile about an individual’s life.
Mr. Divan delved further into the right to privacy judgment’s articulation of the right to informational self-determination and informational privacy and referred to Helen Nissenbaum’s work. He proceeded to stress different parts of the privacy judgment about fundamental rights in the transformation from colonial rule to a Democratic Republic, civil/political rights and socio-economic rights are complementary, and not at odds, privacy is not just a privilege of the elite and the importance of judicial review in order to protect individual right.
Chief Justice of India asked Mr. Divan to read the paragraph on privacy and the age of information (306) that deals with issues of data mining and data profiling, especially of metadata.
The next hearing will be on 23rd January.