Asheeta Regidi Apr 07, 2018 11:42 AM IST
Editor's Note: This is a two-part series which will be taking stock of all the important arguments that have taken place so far in the Aadhaar Supreme Court hearings. Part 1 will focus on Days 1 to 15 and Part 2 (to be published tomorrow) will focus on Days 15 to 25 of the hearings. To read our complete coverage of the Aadhaar Supreme Court hearings, head over the list of stories at the end of the article.
Hearings in the Aadhaar case before a Constitutional Bench of the Supreme Court have been in progress since 17 January 2018. In the fight for the fundamental right to privacy, among other rights, in relation to Aadhaar, several crucial arguments have been made. These will drive the next foundation stone of the right to privacy in India through the judgment of the Supreme Court.
Here is a recap of the last 25 days of hearings in 25 contentions.
Part I lists the contentions made from Days 1 to 15, by senior counsels Shyam Divan, Kapil Sibal, Gopal Subramaniam and Arvind Datar.
From Days 1 to 7, senior counsel Shyam Divan presented his arguments on behalf of the petitioners, presenting his stand that the ‘eminent domain’, or the right of the government to take public property for private use, did not extend to the human body.
1. The integrity of Aadhaar process and private party involvement: The lack of integrity in Aadhaar enrolment and authentication processes was the first issue raised. Issues of data collection in the absence of a law, inadequate qualifications of the personnel appointed, and the lack of reliability of biometric processes were asserted. The involvement of private parties who were without UIDAI control was also asserted as a concern. In support, the 49,000 blacklisted enrollers and findings of enrollers selling data collected for a price was cited.
2. On authentication via biometric information: The collection of biometric information, it was argued, violates a person’s fundamental right to bodily integrity. The open-ended definitions of biometric and core biometric information under the Aadhaar Act further points to unconstitutionality. Later, senior counsel Kapil Sibal argued that making the receipt of a governmental benefit conditional on the waiver of constitutional rights amounted to an unconstitutional condition. Senior counsel KV Vishwanath also pointed to another problem, that biometric authentication only resolved one issue with the diversion of subsidies — identity fraud.
3. Three tests for a valid restriction of privacy: Based on the Puttaswamy judgment, three tests were drawn out to validate an infringement of privacy: the existence of a law, legitimacy of purpose, and proportionality of the encroachment. The lack of a law for collection prior to 2016 was pointed to. The large-scale collection and storage of data, it was further argued, does not meet the test of proportionality.
4. Real-time surveillance from electronic footprints: Technical evidence was provided showing how the electronic footprint created via Aadhaar authentication records enabled real-time tracking of a person. In relation, issues of data aggregation and data sharing with the State Resident Data Hubs was also raised. Later, senior counsel Meenakshi Arora also argued on the chilling effect created by an apprehension of surveillance. Foreign judgments were cited which held that secret surveillance had the ability to undermine a democracy. More importantly, there is a need to protect the future generations from such surveillance.
5. Fundamental right violations cannot be validated in retrospect: On Section 59 of the Aadhaar Act which seeks to provide retrospective validity to Aadhaar, it was argued that the violation of a fundamental right could not be validated in retrospect. The Bench later observed that a law may supplement the absence of a law in retrospect, but it could not validate the breach of a law in retrospect. Senior counsel KV Vishwanath later argued that even if Section 59 was a valid validating provision, it could not declare compliance with safeguards for the infringement of privacy, when there was none.
6. Aadhaar based exclusion: Extensive arguments were made on the issue of Aadhaar-based exclusion, particularly that Aadhaar was causing more inclusion than exclusion. Incidents such as diversion of pensions and food grains, starvation deaths, etc. were pointed to. The State cited exception handling mechanisms under Section 7, but the petitioners countered that the situation on the ground could not be ascertained by looking at the law. The Bench also expressed concerns with the exclusion being caused on the ground.
On Days 8 to 10, senior counsel Kapil Sibal argued the case, arguing that Aadhaar was like an RTI Act for the state and that the Aadhaar case was the most important case before the Courts since ADM Jabalpur.
7. Section 7 and 57: It was argued that Section 57 of the Aadhaar Act, which allows the use of Aadhaar to be extended by even private entities, could be constitutional only if it was interpreted to only establish another identity document. The Bench was sceptical, noting that the government’s interpretation was that it allowed other entities to make Aadhaar mandatory. Next, on Section 7 (which also establishes the link with Aadhaar as a money bill), it was argued that this was not essential to the Aadhaar Act, and the same purpose could be achieved by amending the Food Security Act.
A man goes through the process of eye scanning for the Unique Identification (UID) database system, also known as Aadhaar, at a registration centre in New Delhi, India, January 17, 2018. Image: Reuters
8. Aadhaar doesn’t establish status: A key argument raised was that a person’s entitlement to a benefit was based on his status, and this is a factor which Aadhaar does not establish. It was further questioned if it was constitutional to provide only one option to prove identity.
On Days 11 to 13, senior counsel Gopal Subramanium argued that notwithstanding the progress in technology, the Constitution cannot be obfuscated.
9. Algorithms and preference to the virtual person: The sole of Aadhaar, it was argued, was continuous authentication, which gave a preference to the virtual person over the natural person. This ability to cause the civil death of a person was handed to an algorithm that was unreliable, irrational and over which the state had no control. Further, the algorithm had the effect of removing the state as an intermediary for the citizen.
10. Violation of dignity, the golden thread between Articles 14, 19, and 21: Dignity, it was argued, is the golden thread running between these three articles, and this was violated by Aadhaar. The Aadhaar system led to the exposure of the most marginalised section of society as the most marginalised, violating their dignity. Subjecting an entire population to identification procedures on the assumption that they all are impersonators violates dignity. Further, the identification of a citizen through a number objectifies and depersonalises the individual, thus being completely destructive of dignity.
11. CIDR code and the L1 Contracts: Shyam Divan had previously pointed out that the government has no ownership over the CIDR’s code. Gopal Subramanium additionally raised the issue of the L1 Contracts and the access granted to Aadhaar data thereby. Senior counsel Anand Grover later argued that this sharing of data made Aadhaar insecure ab initio.
On Days 14 and 15, senior counsel Arvind Datar presented his arguments on the Aadhaar- bank account linkages.
12. Aadhaar-Bank account linking under Rule 9 of the PMLA Rules: Rule 9 of the PMLA (Prevention of Money Laundering Act) Rules was first compared to the RBI’s Master Direction of 2016, which allows six identity documents. Rule 9, however, mandates Aadhaar with PAN. Arguing on which of the two would prevail, it was argued that there was no hierarchy between the two. Further, not linking bank accounts as such leads to them being made non-operational. This was argued to be draconian and a violation of the right to property. Further, asking people to either consent or have their accounts blocked was no consent at all.
13. Aadhaar, the SSN and smart card: Aadhaar was also compared to the adoption of the Social Security Number (SSN) in the US. The SSN’s adoption and its subsequent rejection as a de facto standard universal identifier in the US was discussed. In view of this, it was argued that Section 57 allowing the use of Aadhaar for ‘any purpose’ could not be interpreted to mean use for ‘all purposes’. Aadhaar was also previously compared to the Israeli smart card system, which was voluntary and did not involve centralisation of biometric data.
Part II, to be publishe tomorrow, will deal with contentions on Days 15 to 25
You can read out coverage of the Aadhaar Supreme Court case below.
Aadhaar hearing: Supreme Court expresses concerns with data breaches, Aadhaar security and profiling
The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.
Published Date: Apr 07, 2018 11:38 AM | Updated Date: Apr 07, 2018 11:42 AM
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Part - 2
News-Analysis Asheeta Regidi Apr 08, 2018 09:56 AM IST
Editor's Note: This is a two-part series which will be taking stock of all the important arguments that have taken place so far in the Aadhaar Supreme Court hearings. Part 1 focusses on Days 1 to 15 and Part 2 (the concluding part) will focus on Days 15 to 25 of the hearings. To read our complete coverage of the Aadhaar Supreme Court hearings, head over the list of stories at the end of the article.
After Part I which dealt with the contentions from Days 1 to 15, Part II lists the contentions made by the petitioners from Days 15 to 19, and those of the State from Days 20 to 25. This includes arguments by senior counsels P Chidambaram, KV Viswanath, Anand Grover and others. Attorney General KK Venugopal is currently arguing for the State.
On Days 15 and 16, senior counsel P Chidambaram argued extensively on Aadhaar as a money bill.
14. Aadhaar as a money bill: A money bill, under the Constitution, can deal ‘only’ with six listed issues, such as imposing taxes, governmental borrowing of money, or withdrawing money from the Consolidated Fund of India. The term ‘only’, it was argued, must be interpreted strictly to classify a given bill as a money bill. Any bill incorrectly passed as a Money Bill strikes at the very root of one of the basic features of the Constitution, ie federalism. A money bill, in order to be one, cannot have any provision beyond the six listed provisions.
15. Interim orders of the Supreme Court on deadlines: A significant development on Day 16, was the passing of interim orders by the Supreme Court, extending the deadlines for Aadhaar based linkages until the disposal of the case. An exception was drawn for the deadlines for the Section 7 benefits, though the government has since extended the deadline for the Section 7 benefits as well.
From Days 16 to 18, senior counsel KV Viswanath argued against the de-facto compulsion under the Aadhaar Act.
16. De-facto mandatory Aadhaar and indirect coercion: KV Viswanath argued that though Aadhaar was framed as a voluntary scheme, it had in fact been made mandatory through the various notifications. As a result, people are being forced to enrol in Aadhaar and part with their identity information in order to obtain their statutory entitlements. Terming this as ‘indirect coercion’, it was argued that this led to a barter of constitutional rights. Further, refusing entitlements to those who chose not to enrol leads to a violation of the right to equality.
17. Limits on powers to issue compulsions under the law: The state, it was argued, has limited powers to introduce compulsions under the law: as punishment for breaking the law, to aid law enforcement and to prevent potential law-breaking. The compulsions issued via Aadhaar were neither proportionate nor reasonable.
On Days 18 to 19, the remaining petitioners, represented by senior counsels Anand Grover, Meenakshi Arora and others concluded the case for the petitioners.
18. Aadhaar project goes beyond the objectives of the Aadhaar Act: Senior counsel Anand Grover took the stand that the entire Aadhaar project was being operated as a vehicle of the state for myriad objectives, and goes beyond the stated objectives of the Aadhaar Act. There were several activities that were unregulated by the Act, such as the establishment of KYR+ (Know your resident) and illegal sharing of data with State Resident Data Hubs (SRDHs). Further, there was no evidence of destruction of data with the SRDHs, as suggested by the State. The complete violation of interim orders of the Supreme Court was also pointed to.
19. NRIs, children, and ‘number of the beast’ Aadhaar: The effect on specific sections of society was raised, including on the rights of a child, such as making the right to education subject to Aadhaar, and the issues of transgender persons and NRIs. Objections were also raised to Aadhaar enrolment by ‘conscientious objectors’, based on the belief of certain Christians that Aadhaar was similar to the prophetic ‘beast’ in the Book of Revelations.
Attorney KK Venugopal argued that the right to privacy must give way to the right to life. Getty.
20. Lack of remedies, excessive delegation, and Aadhaar cancellation powers: Other issues raised include the lack of remedies to people under the Aadhaar Act was raised as a challenge to its constitutionality. An excessive delegation of rule-making power to the UIDAI was also raised. Also, the power of the UIDAI to deactivate or cancel an Aadhaar number at its discretion was raised. In view of this, authentication failure being seen as impersonation and the issue of the onus being on the people to update their biometrics from time to time under the Aadhaar regulations was pointed to.
On Day 20, the State commenced its arguments. On Days 20 to 21, Attorney General KK Venugopal argued that the right to privacy must give way to the right to life.
21. Tremendous effort and Rs 9,000 crore investment in Aadhaar: The Attorney General argued that a tremendous effort had gone into setting up Aadhaar, and several alternatives including smart cards had been taken into consideration. For instance, it was pointed out that smart cards had been rejected in favour of the advantages of de-duplication processes in a centralised system. The World Bank’s Support to Aadhaar was also cited. Aadhaar, it was argued, was designed to ensure the least possible violation of privacy. It was further stated that an investment of Rs 9,000 crores had been made in the Aadhaar system. The cost of Aadhaar itself, however, was less than $1.
22. Official identification is a basic human right: Official identification, it was argued, could help reduce poverty, by helping achieve economic development, participation in the electoral process, as well as provision of governmental benefits. It was thus more than a convenience, but a fundamental human right. The right to privacy, it was argued, must give way to distributive justice. The Supreme Court, however, stated that political guarantees were meant to advance economic and social rights, and not instead be foregone for their sake.
On Days 22 to 23, the CEO of UIDAI, Ajay Bhushan Pandey, made his PowerPoint presentation, to establish that Aadhaar was a secure, well-thought-out system.
23. Minimal data collection and high-security standards: Through the PowerPoint presentation, it was sought to establish that Aadhaar was a well thought-out, secure system, which adopts privacy by design. The entire Aadhaar process from enrolment to authentication to updation was discussed in detail to prove these factors. The high quality and security standards applicable to enrolment agencies, Aadhaar certified biometric devices, data centres, etc. were discussed. Foreign companies, it was stated, did not have access to any data, and authentication data in silos cannot be merged. The Virtual ID system as an additional measure was also discussed. Lastly, 20 questions put forth by the petitioners were also answered.
On Days 24 to 25, Attorney General KK Venugopal then resumed his arguments, seeking to prove that Aadhaar is a just, fair, and a reasonable law.
24. Aadhaar meets legitimate interests and proportionality requirements: It was argued that in today’s digital era, Aadhaar was the best way to prevent money laundering and the dissipation of benefits. Several American judgments were cited, which had found the collection of fingerprints to be a minor inconvenience, minimally intrusive and not a ‘fundamental decision’. Fingerprinting, further, carries no presumption of criminality. American judgments were also cited which had held that wide latitude should be given to the State when implementing social welfare schemes.
25. A Court cannot second-guess the intentions of the executive: Arguing on the balance of powers between the organs of the state, it was asserted that the Court cannot second guess the intentions of the executive. Further, American judgments were cited to argue that the constitutionality of Aadhaar should be judged based on what it is, and not based on hypothetically what it could be. Further, it was argued that there was a need to balance competing interests, of the right to privacy and the right to life.
Arguments of the state will continue from 10th April.
You can read our coverage of the Aadhaar Supreme Court hearings below.
Aadhaar hearing: Supreme Court expresses concerns with data breaches, Aadhaar security and profiling
The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.
Published Date: Apr 08, 2018 09:56 AM | Updated Date: Apr 08, 2018 09:56 AM
