13361 - Aadhaar supported by UPA, NDA: UIDAI to SC - TNN

Aadhaar supported by UPA, NDA: UIDAI to SC

PTI | Apr 25, 2018, 22:28 IST

NEW DELHI: The Aadhaar scheme has the support of two successive governments and senior advocate Kapil Sibal, who had opposed it for a party in the Supreme Court, was part of the empowered Group of Ministers which had dealt with the 12-digit unique national identifier issue, the UIDAI counsel said on Wednesday. 

In a veiled attack on Sibal who was at the forefront of the move by opposition MPs to impeach the Chief Justice of India, senior advocate Rakesh Dwivedi, representing Unique Identification Authority of India (UIDAI), said the Congress leader was part of the Empowered Group of Minister (EGoM) that had dealt with the Aadhaar scheme. 

He said now the same person, who was once advocating the Aadhaar scheme, was making a submission that data would be compromised with private players. 

"Mr Sibal argued that the government is collecting data and would give them to private players," Dwivedi took a dig at Sibal while making his submission before a five-judge constitution bench headed by Chief Justice Dipak Misra. 

"The (Aadhaar) policy had the support of two successive governments," he told the bench which also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

"I will not say much," Dwivedi said and indicated about the recent developments involving the top judiciary.

Sibal, who had appeared for some petitioners opposed to the Aadhaar scheme, was not present in the courtroom. He recently said he would not be appearing before the CJI as he was a signatory to the impeachment notice.

TOP COMMENT

But UPA did not ask anyone to link all the personal to one number. It was for security and welfare scheme distribution purposes only. But NDA is trying to put the life of people at risk. Many students and people are still suffering only because of vague implementation of aadhaar by NDA. Gov trying to surveil each and every move of all the citizens which is always a very bad idea.

Bharath Kumar

Earlier, Sibal had opposed the Aadhaar scheme and said "our identity cannot be confined to mere Aadhaar numbers, we are all much more ... I am against the this one-nation-one-identity move."

The apex court is hearing a clutch of petitions challenging Aadhaar and its enabling 2016 law. 

13231 - Aadhaar: Eternal surveillance is the price of welfarism - Sunday Guardian

Aadhaar: Eternal surveillance is the price of welfarism

Ravi Shanker Kapoor

• April 7, 2018,
• 3:58 PM

Left-leaning activists crying themselves hoarse over Aadhaar are being delusional.

The Supreme Court has rightly raised questions about the “excessive delegation” of powers to the Unique Identification Authority of India. This is in consonance with the Apex Court’s pro-liberty propensity as evident in its 2015 verdict invalidating the draconian Section 66A of the Information Technology Act and the more recent ruling announcing privacy as a fundamental right. But there is considerable dissonance, if not downright hypocrisy, in the stand of many litigants and activists opposing Aadhaar.

On Wednesday, a Constitution Bench led by Chief Justice Dipak Misra, posed tough questions to Attorney General K.K. Venugopal. Referring to Section 2(g) of the Aadhaar Act, Justice D.Y. Chandrachud and asked Venguopal to define the words “such other biological attributes”. Section 2(g) says, “biometric information means photograph, fingerprint, iris scan, or such other biological attributes of an individual as may be specified by regulations”.

There are very genuine concerns indeed, correctly put by the judge: “The Act leaves it open to the government to add any biological attributes. Today you may not, but tomorrow with the growth of technology, you may decide to add DNA, etc.”

However, when some of the petitioners say such things to masquerade as the champions of freedom, one feels incensed. 

In February, for instance, senior Congress leader, advocate, and former Union minister Kapil Sibal had argued in the Supreme Court that with the Aadhaar biometric identification system, the government is creating “a monolith, a system with no choices”. Similarly, in the next month his party colleague and another former Union minister P. Chidambaram had opposed Aadhaar.

Come to think of it, these two guys were top ministers when the illiberal Section 66A was introduced; now they are talking “choices”. There was a time when Chidambaram would openly threaten reporters; he would complain to the owners of media organisations, often telling them to sack the journalists who asked uncomfortable questions. It happened to one of my friends, but he survived because the media baron concerned was not spineless. And today the former Finance Minister has the cheek to preach us about the virtues of liberty, democracy, and tolerance. Seldom was sanctimoniousness as brazen.

While the politician-lawyers are just being hypocritical, Left-leaning activists crying themselves hoarse over Aadhaar are also being delusional. They rail against Aadhaar on the grounds that it violates privacy. But their rants sound hollow, for the real problem is the statist policies that they have long favoured, and often imposed on the country. It is a well-acknowledged fact that statism and socialism invariably end up marginalising, diminishing, even killing the individual. Intrusion into privacy is implicit in the logic of welfare state. All they want to establish is a welfare state, even though the state per se is, to use their phraseology, has been withering, what with a dysfunctional Parliament, an incompetent and corrupt executive, and an overburdened judiciary.

At the heart of the issue is the dilemma of Left-liberals: on the one hand, they want to keep augmenting entitlements—a process that is predicated upon the ever-increasing size and scope of government; and, on the other, they want the citizens to enjoy all the freedoms that the people in Western countries do. In a way, they want India to have the best of the erstwhile Soviet Union and America.

The truth, however, is that the things that are diametrically opposed to each other have a meeting point. A follower of Hafiz Saeed can’t be a Gandhi devotee, a wine connoisseur can’t be a teetotaller, a libertine can’t be a celibate—and entitlements can’t coexist with limited government. But the likes of Jean Drèze, a Belgium-born pink economist, believe otherwise. And yet he laments that, as he wrote in an article in The Indian Express (8 May 2017), “India is at risk of becoming a surveillance state.”

This is surprising from somebody who played a key role in birthing the abomination called NREGA. I call it an abomination because it makes serfs out of free individuals, making them perpetually look askance at the gigantic feudal lord called the Indian state. It was people like Dreze who began the enslavement of the poor in the name of their liberation. Freedom is, after all, slavery; remember 1984? It was an Orwellian endeavour they began; now they are aghast that somebody they hate so intensely, Prime Minister Narendra Modi, has taken charge of the enterprise.

Congress luminaries and parlour pinks are right in saying that Aadhaar is potentially dangerous; it can transform India into a surveillance state (assuming it already isn’t one, primarily because of the misdeeds of the pre-Modi regimes). But then, as former US President Gerald R. Ford said, “A government big enough to give you everything you want is a government big enough to take from you everything you have.”

In a nutshell, you can’t get welfare without surveillance, for surveillance is embedded in welfare state.

13049 - After 2 months of arguments against Aadhaar, govt to defend its validity - TNN

After 2 months of arguments against Aadhaar, govt to defend its validity

Dhananjay Mahapatra | TNN | Updated: Mar 21, 2018, 07:43 IST

HIGHLIGHTS

• During the hearing, the Centre had clarified that Aadhaar would not be mandatory for students appearing in all-India entrance examinations such as NEET
• SC passed an interim order indefinitely extending the mandatory Aadhaar linkage deadline of March 31
• Chidambaram attacked the Centre for passing Aadhaar as a money bill and said this move hit at the country’s federal structure

NEW DELHI: The Centre on Wednesday will start countering a mountain of legal issues heaped against Aadhaar in the Supreme Court by numerous petitioners in the last two months, primarily focussing on violation of individual’s right to privacy through collection and storage of biometric data. 

During 19 days of arguments spanning two months since it began on January 17, senior advocates Shyam Divan, Kapil Sibal, P Chidambaram, Gopal Subramanium, K V Vishwanathan, Anand Grover, Meenakshi Arora, Sajan Poovayya and C U Singh identified specific issues in the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, and their incongruence with guaranteed constitutional rights.

Divan, the lead counsel for Aadhaar opponents, argued for more than seven days and attempted to shred the foundation of the unique identity by presenting Aadhaar as a draconian surveillance device open to abuse by the government. 

Sibal supplemented Divan and had said, “This is the most important case for India since 1947. What the Supreme Court will decide is going to have a profound bearing not only on the present generation but all future generations. That is the enormity of the issue. It will decide the value of right to privacy of citizens in future. The SC judgment on Aadhaar will also decide whether fundamental rights will be preserved or destroyed.”

Chidambaram attacked the Centre for passing Aadhaar as a money bill and said this move hit at the country’s federal structure as it deprived Rajya Sabha of making amendments to Aadhaar and also prevented the President from returning the bill with objections. As one of the last to argue, Poovayya on Tuesday gave a technological spin and said though there was no objection to collection of biometrics, the manner of data storage and sharing was bound to infringe upon citizens’ right to privacy.

TOP COMMENT

what fundamental rights are these criminals speaking. if you are not corrupt why should you be afraid. if the govt brings in rules then people have to follow it.

Alagar Aravindh

He cited a 25-year-old German Federal Court decision, which had partially struck down Census Act of 1983 for permitting sharing of personal data with local authorities. The German court had said every citizen had an inviolable “informational self-determination” right. 

Poovayya suggested that the Aadhaar card could be equipped with a chip, like credit and debit cards, to store personal information, and a person could then exercise his right whether or not to swipe it at a particular place for authentication of his identity.

During the hearing, the Centre had clarified on March 7 that Aadhaar would not be mandatory for students appearing in all-India entrance examinations such as NEET. A week later, the SC passed an interim order indefinitely extending the mandatory Aadhaar linkage deadline of March 31. Attorney general K K Venugopal will answer the charges levelled against Aadhaar. 

12915 - Case schedule clouds Aadhaar link deadline, petitioners to seek extension in SC - Hindustan Times

Case schedule clouds Aadhaar link deadline, petitioners to seek extension in SC

The Supreme Court is expected to resume hearing the case on March 6. In December, it extended the last date for completion of the process to link Aadhaar with services to March 31.

INDIA Updated: Feb 28, 2018 09:48 Ist

Ashok Bagriya  Hindustan Times, New Delhi

Petitioners opposed to the mandatory linking of Aadhaar with bank accounts, phone numbers and other services will seek an extension of the deadline for such linkage, their lawyers said on Tuesday, citing the low probability of the case being concluded in the Supreme Court by March 31, the current deadline for such linking.

The Supreme Court is expected to resume hearing the case on March 6. In December, it extended the last date for completion of the process to link Aadhaar with services to March 31. However, going by where the case stands, it is unlikely to be concluded by March-end, the petitioners contend. A delay also seems certain because the same five-judge bench hearing the Aadhaar case has been asked to hear the land acquisition case on priority.

The land acquisition case has occupied centre stage in the Supreme Court with one three-judge bench taking issue last week with the 8 February judgement of another three-judge bench that, in effect, overturns the judgement of yet another three-judge bench dating back to 2014.

“We will be renewing the request for extension of the March 31 deadline as it is becoming apparent that the hearing cannot be concluded and the judgment delivered before March-end,” said senior advocate Sanjay Hedge, who appears for petitioner John Abraham, a student denied admission to a Mumbai college for lack of Aadhaar.

Read more

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People familiar with the matter in UIDAI concur with the assessment that the judgment is unlikely to be delivered by March 31, and said that an extension is “likely”. One official said that it was for the court to decide on the deadline, and that the authority would comply with an extension, if needed.

Ajay Bhushan Pandey, chief executive officer of the UIDAI, said it would be inappropriate for him to speak on the issue. “Since the matter is sub judice in the Supreme Court, let’s wait for the court’s verdict,” he said.

So far, only senior advocates Shyam Divan and Kapil Sibal appearing for the petitioners have finished their arguments. Senior advocate Gopal Subramanium, who appears for one of the petitioners, is currently midway through his arguments. Six more lawyers, Arvind Datar, KTS Tulsi, Anand Grover, KV Viswanathan, Minakshi Arora and Sanjay Hegde , are to follow.

After that, it will be the turn of the government , led by attorney general KK Venugopal, to defend Aadhaar. Thereafter, UIDAI and the Gujarat and Maharashtra governments will make separate arguments on the matter.

One of the main arguments of the petitioners challenging the validity of Aadhaar is that it violates privacy rights. The government has argued that Aaadhar is necessary to plug leakages in its subsidy programmes and prevent corruption.

“Yes, we will be pressing for the extension of the March 31 deadline for linking Aadhaar to various services as the hearing cannot be completed by March-end,” said advocate Vipin Nair, who appears for petitioner Dr Kalyani Menon Sen.

“The land acquisition case, to be heard by the same bench , will come up first, further lowering the chance of a judgment in the latter by the end of next month,” Nair added.

According to the list of business released by the Supreme Court registry, the land acquisition case, to be heard by the same five-judge bench hearing the Aadhaar case, will be taken up first.

Senior advocate Jaideep Gupta, who is not appearing in the Aadhaar case, said a verdict was not likely by March 31 even if the court passed interim orders on the issue and resumed the Aadhar hearing at the earliest. “The court is giving full latitude to counsels to argue the way they want. At the rate which the case is progressing, it very unlikely that the hearing will end by March end. It will take much longer.”

12837 - From Aadhaar to probe into Judge Loya’s death: Cases in the Supreme Court this week - Hindustan Times

From Aadhaar to probe into Judge Loya’s death: Cases in the Supreme Court this week

This week the Supreme Court will hear several important cases.

INDIA Updated: Feb 19, 2018 08:55 Ist

HT Correspondent  Hindustan Times, New Delhi

Hearings for several important cases will continue in the Supreme Court this week.(HT File Photo)

The Supreme Court will during the week continue to hear several important cases, including petitions that challenge Aadhaar, pleas for probe into the death of special CBI judge BH Loya and the Kerala ‘love jihad’ case.

A list of cases in the top court this week:

Aadhaar petitions

A five-judge constitution bench led by CJI Dipak Misra will resume the hearing of petitions challenging the Aadhaar. Arguing for the West Bengal government, Congress leader and senior advocate Kapil Sibal had said the consequences of a verdict in the case will be far more critical for the country than the decision given in 1976, which upheld the suspension of fundamental rights, during the Emergency.

Judge Loya

An apex court bench headed by CJI Misra will also take up petitions asking for an independent probe into the death of CBI special judge BH Loya, who was hearing the Sohrabuddin Sheikh encounter case, when he died of cardiac arrest on December 1, 2014. Last week, the Maharashtra government had rebutted the charges levelled by the petitioners against the state and said the four judges, who were with Loya at the time of his demise, had termed his death “natural.”

Haj pilgrim selection

Kerala State Haj Committee’s plea to have an all-India system to select pilgrims for the Haj pilgrimage will be heard by the CJI-led bench. The Centre is likely to give its response to the petition.Asserting that the current draw of lots system is discriminatory, the committee has contended that Kerala has a higher number of people who want to go for Haj than states like Bihar. The petition challenges the centre’s decision to revoke exemption given to fifth time applicants from the state.

Hadiya case

Petition by Shafin Jahan, questioning the Kerala HC judgement annulling his marriage to Hadiya, a Hindu woman who converted to Islam, will also come up for hearing this week. On the last hearing, the top court had asked the National Investigation Agency (NIA) to stay away from probing into Hadiya’s choice to marry Jahan.

NIA has argued before SC that Hadiya was indoctrinated, radicalized and brainwashed.

Pensions for MPs

An SC bench led by Justice J Chelameswar will hear the plea filed by the Lucknow-based NGO Lok Prahari, seeking an end to the pensions given to parliamentarians. The petitioner has argued there are no guidelines for allowances received by members of parliaments.

Cow slaughter ban

Cross petitions challenging Bombay HC verdict that banned cow slaughter in Maharashtra but allowed for sale and possession of beef brought into the state from outside will also come up for arguments.

Thirty social activists from the state have assailed the HC direction to ban cow slaughter on the ground that it “violated” one’s right to choose food, which they said breaches the fundamental right to live.

12824 - Indian Justices attempt to clarify legal positions as Aadhaar constitutional challenge continues - Biometric Update

Indian Justices attempt to clarify legal positions as Aadhaar constitutional challenge continues

By Chris Burt

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Challenges to the constitutional validity of the Aadhaar program in India’s Supreme Court continue to be heard, with Court Justices attempting to clarify the legal position of the petitions against it, The Hindu reports.February 16, 2018 - 

The hearings are considering 27 writ petitions together, the first of which was initiated seven years ago, according to the Hindu. On the eighth day of hearings this week, Senior advocate Kapil Sibal questioned why the authentication of identity should be linked to biometrics.

“With other identity documents open to duplicity, let us have at least one identity with biometrics,” Justice A.K. Sikri responded.

Sibal has argued that Aadhaar is unconstitutional because it is inconsistent with the fundamental right to choose, as protected under Article 21 of India’s Constitution, and that the program creates a “one-nation-one-identity” regime in which the lack of an Aadhaar number is a risk of “civil death.”

The UIDAI, however, reiterated recently that essential services cannot be withheld from individuals who do not posses an Aadhaar number, or for whom authentication under the program fails. Numerous controversies have dogged the program, but Justice D.Y. Chandrachud pointed out during the fifth day of hearings earlier this month that the possibility for misuse is not grounds for striking down a law.

In addition to the general validity of the scheme, Justices are considering the limitations of the Aadhaar program.

“Let us say Aadhaar is per se constitutionally valid. Then we have to decide how far Aadhaar can be used. Should Aadhaar be used only to access subsidies? Is there a constitutional line that should not be infringed? A line when crossed would become violation of privacy,” Justice Sikri observed in late January, as reported by The Hindu.

India’s government plans to link Aadhaar to the driver’s license system to identify fakes, as previously reported, and the election commissioner has suggested the program be used to verify voters’ identities.

12807 - Aadhaar hearing: Petitioners argue that receipt of govt benefits cannot be at the cost of compromising fundamental rights - First Post

Aadhaar hearing: Petitioners argue that receipt of govt benefits cannot be at the cost of compromising fundamental rights

India Asheeta Regidi Feb 14, 2018 19:55 PM IST

On Day 10 of the Aadhaar case, the main arguments were on the power of knowledge through metadata and the resultant privacy concerns, on the constitutionality of making the receipt of governmental benefits conditional on the waiver of fundamental rights, and lastly, on whether a system like Aadhaar is proportional to the objects sought to be achieved. A discussion also ensued between the Court and the counsel on the reasonability of requiring a minimal form of identity to receive benefits. Senior Counsel Kapil Sibal concluded his arguments, stating that this case was the most important case in Indian history since the ADM Jabalpur case.

On the power of information

The first point of argument was on the key differences between the Aadhaar system, and Israel’s ID system, which, unlike Aadhaar, is voluntary and does not authorize the collection of metadata. The often cited Regulation 26 of the Aadhaar (Authentication) Regulations, allows the authority to store metadata relating to the authentication transaction. The petitioners had during previous arguments discussed how such metadata was being collected in the Aadhaar system and the information it revealed, including its ability to enable real-time tracking.

To emphasize the concerns with this tracking, the petitioners quoted from the Puttaswamy judgment, which had discussed the power of information as knowledge. In particular, the judgment had stated that ‘electronic tracks’ created a powerful means of knowledge, information which in silos is inconsequential, but in aggregation could disclose the nature of a person. To further emphasize this point, that the high valuation of WhatsApp when it was purchased by Facebook, was on account of the information it provides, was discussed.

Based on this, the petitioners stated that while it cannot be argued that the State cannot insist on a national ID, it must be ensured that that ID is not public and is not in a centralized database. The conflict, according to the petitioners, is between public interest on the one hand and personal information in the public domain on the other. In support of this, the recent reports of the woman who was forced to deliver her child outside a hospital was also brought to the Court’s notice.

Govt benefits and waiver of fundamental rights

A fundamental concept under constitutional law is the doctrine of unconstitutional conditions, which prevents the government from making a person’s receipt of governmental benefits conditional to the waiver of a constitutional right. Pointing to the violation of the doctrine by the government, the petitioners argued that this prevented the government from denying benefits and entitlements to a person only for want of an identity. This, they argued, was not a question of whether or not the Aadhaar infrastructure was defective, but that even if it was flawless, one form of identity alone cannot be mandated.

For both a citizen who does not have his Aadhaar card, and for one who refuses to take an Aadhaar card, his rights and entitlements as a citizen are abrogated. These governmental benefits, it was argued, flow from Part III of the Constitution, and the denial of them amounted to a denial of fundamental rights.

Is requiring a minimal proof of identity a reasonable requirement?

At this point, the Bench observed that when an entitlement depends on who the person is, wasn’t it reasonable for the government to require minimal proof for that? The petitioners answered that the entitlement relates to a person’s status, a factor which Aadhaar does not establish. So long as a person can prove his identity for that particular entitlement by any method, he should be entitled to receive it.

The petitioners agreed that it is reasonable to be required to prove status in order to receive a benefit, but a person has a right to prove this status in a reasonable way. To emphasize this, the petitioners listed some of the schemes for which Aadhaar had been made mandatory including for the rehabilitation of bonded laborers and the national child labour scheme. The main issue, in the words of the Bench, was on whether it is constitutional to provide only one option of proving identity, and whether you can barter one fundamental right for another.

Is the Aadhaar system proportional to its objectives?

The petitioners have long been arguing that the very concept of Aadhaar is inconsistent with the concept of proportionality. Arguing further on this, the petitioners listed the many issues with the PDS system as pointed to in the Wadhwa Committee Report, arguing that Aadhaar resolves only one of those issues (identity fraud). The Bench observed here that the failure of Aadhaar to resolve other flaws will not make it unconstitutional, to which the petitioners countered that what this failure establishes is the lack of proportionality of Aadhaar.

The Bench here, observed that IDs can be misused, such as the issue of multiple passports, and the advantage of Aadhaar was in that it resolved this issue. To this, the petitioners again pointed that there was no proof that the Aadhaar system could also not be similarly misused, that the same person could obtain multiple Aadhaar IDs as well. Pointing to the lack of proportionality again, the misuse by some persons of an identity system could not be used to allow the State to make everyone get an Aadhaar card.

In summary, Kapil Sibal argued that this case was the most important case in Indian history since the ADM Jabalpur case. The ADM Jabalpur, it was argued, refers to a limited regime, i.e., a suspension of fundamental rights during an emergency only, while Aadhaar refers to an unlimited regime. The Bench, the petitioners argued, must decide if the people live in a country where the people have choice, or where the State is the arbiter of that choice.

Senior Counsel Gopal Subramaniam commenced his arguments for the petitioners. These will continue on Thursday.

Sources of the Arguments: Live Tweeting of the case from the Twitter handles @SFLCin and @gautambhatia88, and LiveLaw Reports

Read our past coverage of the on-going Aadhaar Supreme court hearing:

Why SC needs to look into technical evidence of Aadhaar’s surveillance capabilities

Lack of governmental ownership of CIDR’s source code can have serious consequences

Will State give citizens rights only if they agree to be tracked forever, asks lawyer Shyam Divan

Coalition for Aadhaar: A collective of private companies wants to ensure that Aadhaar ID and related services continue to be offered

Petitioners argue on centralisation of data and challenge Aadhaar’s claims on savings

Petitioners argue for a voluntary ID card system that does not collect user data

The author is lawyer and author specialising in technology laws. She is also a certified information privacy professional.

#Aadhaar #Aadhaar Case #Aadhaar Data Collection #Aadhaar Hearing #Aadhaar Special #Aadhaar Supreme Court #ConnectTheDots #Fundamental Rights

Published Date: Feb 14, 2018 19:51 PM | Updated Date: Feb 14, 2018 19:55 PM

12802 - Aadhaar Affects not just fundamental rights but fedaralism as well _ news Click

Aadhaar Affects not just fundamental rights but fedaralism as well

Newsclick Report 14 Feb 2018

                  Image Courtesy: The Indian Express

In the first session on Day 10 of the Aadhaar hearings that took place on February 13, Senior Counsel Kapil Sibal advanced his arguments. His arguments began by drawing a comparison with the Biometric Database Law of Israel. The Israel law makes the ID cards voluntary, whereas by specifically making Aadhaar mandatory for availing subsidies, benefits and services, there is no question that the Act makes Aadhaar mandatory. The Israel law has been defined for a specific purpose, whereas the purpose for which data is collected under the Aadhaar Act is vague. Sibal further argued that the Act provides for information to be disclosed in the interest of ‘national security’. Till date no law has specifically defined ‘national security’, meaning that it is still open to judicial interpretation. The Senior Counsel added that this provision has the potential for misuse. 

To illustrate this point he relied on the Judgment delivered in Justice K S Puttaswamy (Retd) and Anr v Union of India and Ors also known as the Right to Privacy Case. In this case, the Supreme Court recognised the power of metadata and its potential for misuse. Kapil Sibal argued that the concentration of information in one entity accords tremendous power of control to that entity.

He further argued that the Act does not pass the test of ‘proportionality’. 

There are three parts to determining whether a legislative action is proportional or not; 

(a) the legislative objective is sufficiently important to justify limiting a fundamental right; 

(b) the measures designed to meet the legislative objective are rationally connected to it; 

and (c) the means used to impair the right are no more than is necessary to accomplish the objective. 

In this case, he challenged the Aadhaar Act on the basis that the stated aims of the Act are for targeted delivery of subsidies, benefits, and services. The price that the average citizen will pay for these benefits has no rational nexus with the stated aims.

He also raised the issue that there are several entitlements conferred on non-residents and whether the State would deny these entitlements for want of an Aadhaar number. Several entitlements and benefits that are enjoyed by citizens find their origin in the Fundamental Rights. By making Aadhaar mandatory to avail of these benefits the State is placing a condition on rights that are conferred without any conditions being imposed by the Constitution.

In the second session, Kapil Sibal continued his arguments by highlighting the difference between Aadhaar and other methods of identification. Identification documents such as a passport and driving license confer identity to the individual, whereas Aadhaar only seeks to ‘authenticate’ the identity of the individual. 

He referred to the Minerva Mills decision wherein the Supreme Court had laid down that meeting the objectives of the Directive Principles of State Policy should not abrogate Fundamental Rights. The Senior Counsel concluded his arguments by stating that the present case is the most important case since independence. ADM Jabalpur dealt with issues arising out of the emergency, whereas Aadhaar affects all, irrespective of whether an emergency has been declared or not.

After Sibal concluded his arguments, Senior Counsel Gopal Subramanium took over. Referring to the Right to Privacy case, the Senior Counsel began his arguments by stating that Privacy is a Fundamental Right. Privacy at its root is about human dignity, and Aadhaar accords priority to the electronic individual over the physical person. He reiterated that the aggregation of data is a dangerous proposition and went further to say that the Aadhaar Act envisages data as property, as a means to earn money. He went further stating that the Constitution has highlighted certain specific circumstances where Fundamental Rights may be curtailed, and beyond these certain circumstances, it seeks to restrain the State from encroaching on these Rights. Referring to Part XI of the Constitution – Centre-State Relations – the Constitution lays down a decentralised form of administration, Aadhaar, on the other hand, seeks to centralise it.

Nagri and the (In)Direct Benefit Transfer for Subsidised Food

14 February 2018

The government has been aiming to replace the system of provision of subsidised grain under the public distribution system with a system of cash tr

Praneta Jha

Armed With Aadhaar, Is Indian Welfare Headed The American Way, Only Much Worse?

12 February 2018

A new book that traces how automation in the American welfare s

Newsclick Report

Foreign Companies Also Have Access to Biometric Data Under Aadhaar

09 February 2018

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12798 - Anonymity & entitlements’ aadhaar in Supreme Court - Economic Times

Anonymity & entitlements’ aadhaar in Supreme Court

By Samanwaya Rautray

NEW DELHI: The Supreme Court on Tuesday demanded to know whether citizens could seek government entitlements, while simultaneously insisting on retaining their anonymity at the end of a day-long debate on the compulsory scheme that opponents argued cannot be made a condition precedent for enjoying fundamental rights such as right to food and health or education. 

“You are saying that preservation of anonymity is part of Article 21 (fundamental right to life and liberty). The question is whether sustaining this anonymity would run counter to entitlements under Chapter IV (enshrining directive principles of state policy),” CJI Dipak Misra asked the two arguing senior advocates who argued against Aadhaar. 

A five-judge bench led by CJI is hearing a slew of petitions challenging the constitutional validity of the Aadhaar Act. Sibal argued that Aadhaar was unreasonable in more ways than one. It was procedurally unreasonable as it leaves the citizens with no choice on how to identify himself. “Proof of identity is my choice, not the states’ choice.” 

Sibal said he was not opposed to identity cards per se, but those must not insist on the citizens’ metadata which leaves him vulnerable. He said that he had no opposition to any identity as long as it involves scattered personal data, not aggregated, centralised data, which tilts the power of balance in the state’s favour. He said that he would have no problems with Aadhaar if it was used to limited purposes such as for national security, for controlling crime, for ensuring social security or or for collecting revenue. 

“Identity was in a sense a pejorative word as it takes away dignity,” he said. The CJI and Justice DY Chandrachud were not too convinced and wondered whether a person could insist on anonymity while seeking such entitlements from the state. 

The arguments in the case will continue on Thursday. 

Read more at:

http://economictimes.indiatimes.comhttps://economictimes.indiatimes.com/news/politics-and-nation/anonymity-entitlements-aadhaar-in-supreme-court/printarticle/62909624.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

12797 - Aadhaar [Day-10 Session 2]Decision In This Case Is Going To Decide The Future Of India: Kapil Sibal Concludes His Arguments - Live Law

Aadhaar [Day-10 Session 2]Decision In This Case Is Going To Decide The Future Of India: Kapil Sibal Concludes His Arguments BY: MEHAL JAIN FEBRUARY 13, 2018 7:30 PM...

Read more at: http://www.livelaw.in/aadhaar-day-10-session-2decision-case-going-decide-future-india-kapil-sibal-concludes-arguments/

12796 - Aadhaar ruling will be more significant than Emergency verdict, Kapil Sibal tells SC - TNN

Aadhaar ruling will be more significant than Emergency verdict, Kapil Sibal tells SC

Dhananjay Mahapatra | TNN | Updated: Feb 14, 2018, 06:46 IST

HIGHLIGHTS

• Sibal said the SC verdict in the ADM Jabalpur case damaged the supremacy of the Constitution in a limited manner as the decision upholding suspension of fundamental rights was temporary.
• He also suggested an alternative to Aadhaar.

NEW DELHI: Congress member and senior advocate Kapil Sibal told the Supreme Court on Tuesday that consequences of the Aadhaar verdict would be far more critical for the country and generations of citizens than the court’s 1976 decision upholding suspension of fundamental rights, including right to life, during the Emergency. 

Appearing for the Bengal government before a five-judge Constitution bench, Sibal said the SC verdict in the ADM Jabalpur case damaged the supremacy of the Constitution in a limited manner as the decision upholding suspension of fundamental rights was temporary and ended with the lifting of Emergency. 

“Aadhaar, on the other hand, is the most important case dealt by the SC in the last 70 years. What it decides in these petitions will determine the future of the nation. Adverse consequences of Aadhaar on citizens’ fundamental rights is unlimited. It will be applied not only to the present generation but to our grandchildren and beyond. That is the enormity of the issue. The SC’s decision will decide the future of India and charter the country’s future course... whether or not fundamental rights enjoy inviolable status,” he said. 

The 1976 ADM Jabalpur judgment was roundly condemned and the SC was criticised for succumbing to the pressure of the then government headed by Indira Gandhi. Justice H R Khanna was the lone dissenter on the fivejudge bench and the government wreaked vengeance on him by superseding him. Refusing to bend to the coercion, Khanna had resigned. 

The judgment was declared wrong by a nine-judge Constitution bench last year for the first time, and interestingly, the thumbs down was authored by Justice D Y Chandrachud, whose father Justice Y V Chandrachud was one of the four who had upheld the Indira Gandhi government’s power to suspend fundamental rights. Sibal said Aadhaar with biometrics was a sure invitation for disaster in a digital world, where corporate entities thrive on compiling metadata on people to boost business. 

“In the present business scenario, one who has access to meta data on people’s choices and behaviour becomes successful. With biometrics of more than a billion citizens in a central database, it is an invitation to hackers to steal data and make a serious violation of right to privacy,” Sibal said. He suggested an alternative to Aadhaar.

He said a provision in the Citizenship Act provided that the Union government could maintain a national register for citizens and issue a national identity card to each person. “Why is that not being implemented? We are not against national ID cards but we are opposed to Aadhaar because it carries biometrics and demographic details that will open up every person’s private life. There are other identities like passport, ration card and caste certificates. Why cannot these be utilised for establishing identity for getting entitlements under welfare schemes?” he said. 

Justice Chandrachud said, “There may be a lot of people without any identity card in this country. Minus Aadhaar, they have no identity to avail benefits under welfare schemes. This means, the government can provide Aadhaar as an identity.” Sibal said that if Aadhaar had been something like a smart card, one with personal details but without central storage of the data, no one would have a problem.

“But keeping biometrics and insisting on its linkage to everything is the main problem and cause of anxiety,” he added. He said facts were staring at the repercussions for a person without Aadhaar. There were reports that 40 persons had died because they were denied rations for want of Aadhaar; that a woman was not admitted to hospital and she delivered a baby at the hospital gate because she did not have Aadhaar.

“Why should the common man suffer like this, Sibal asked before concluding his arguments.

12962 - Supreme Court to resume hearing pleas challenging the constitutional validity of Aadhaar - Times Now news

Supreme Court to resume hearing pleas challenging the constitutional validity of Aadhaar

Updated: Feb 13, 2018 | 12:55 IST | Times Now Digital

          Representative image   | Photo Credit: Indiatimes

 New Delhi: The Supreme Court will on Tuesday continue hearing pleas challenging the constitutional validity of the Aadhaar scheme and the enabling 2016 law.

The Supreme Court had during the last hearing stated that that issues such as denial of benefits to citizens for either want of Aadhaar or due to its non-authentication may not be a ground for holding the law as "unconstitutional".

The court made the observation while declining to pass any interim order on a plea of the West Bengal government that the citizens should not be excluded and denied social benefits for want of Aadhaar or due to its non-authentication.

Updating Aadhaar card details to cost Rs 5 more with UIDAI decision to levy 18% GST on fee

"These kinds of problems may not be a ground for holding a statute unconstitutional," a five-judge Constitution bench, headed by Chief Justice Dipak Misra, said.

The bench, also comprising also justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, asked senior advocate Kapil Sibal to continue advancing his arguments on the aspect of exclusion of citizens and made it clear that it would not pass any interim order.

The advancing of arguments would resume on Tuesday.

Gurugram hospital apathy! Denied entry over Aadhaar, woman delivers baby outside emergency ward

Earlier, the apex court had questioned the West Bengal government for its stand against the Aadhaar scheme, saying what was wrong in having 'one-nation, one-identity' for all Indians through the measure.

The apex court had on December 15 last year extended till March 31 the deadline for mandatory linking of Aadhaar with various services and welfare schemes of all ministries and departments of the Centre, states and Union territories.

12932 - Aadhaar hearing: Petitioners argue for a voluntary ID card system that does not collect user data - First Post

Aadhaar hearing: Petitioners argue for a voluntary ID card system that does not collect user data

News-Analysis Asheeta Regidi Feb 09, 2018 17:38 PM IST

On Day 8 and 9 of the Aadhaar hearing, senior counsel Kapil Sibal continued with his arguments for the petitioners. The key arguments made were on the controversial Section 57, based on which Aadhaar was made mandatory for multiple services, on the lack of adequate security measures in the Aadhaar system, and that Section 7, the section establishing the link to the Consolidated Fund of India, is not essential to the Aadhaar Act. On returning to the argument on exclusion, the State, citing various rules, argued that no one is being excluded due to Aadhaar.

On making Aadhaar mandatory under Sec 57

Aadhaar would be better off as a voluntary ID card, argue the petitioners

The petitioners argued on the controversial Section 57 of the Aadhaar Act, which is the section based on which Aadhaar has been made mandatory for various purposes (for example, see the NEET notification in 2017 mandating Aadhaar). Aadhaar opponents have often taken the stand that this section does not in any way allow another party to make Aadhaar mandatory, but merely establishes it as another identity document.

The petitioners argued that the only interpretation which retained the constitutionality of this section, was that this section only established Aadhaar as just another identity document and allowed an individual the option of using Aadhaar as such, and no one could prevent such a person from doing so.

The Bench was sceptical of the interpretation, stating that the government’s interpretation is that this section empowers other bodies to make Aadhaar mandatory. The petitioners argued that ruling that this section empowers even private parties to insist on Aadhaar, would make this section seriously unconstitutional.

Leakage of biometric data compromises the system

The lack of security and safeguards in this system was another argument put forth. The petitioners pointed to how the leakage of biometric data compromises the system, making it difficult to trust future transactions. The petitioners cited the issues created by the Airtel Payments Bank scam, as one such example.

The vulnerability of the CIDR as a single point of attack, the evidence of leakage of biometric data from various sources, and the lack of security with SRDHs was also pointed to. Criminal investigations and trials, it was also argued, are impacted by the leak of this data.

Going further into the security risks with Aadhaar, this system was compared with the security of smart cards. The petitioners argued that with smartcards, there is no centralized database that could be hacked. Also, biometric readers, unlike smart cards, could be defeated quite simply using even Fevicol or wax. The risks of man in the middle attacks were also raised. The petitioners further stated that UIDAI’s L0 and L1 standards for registered biometric devices had not been met by many devices.

State says no one has been excluded due to Aadhaar

Returning to the exclusion arguments made in previous hearings, the petitioners further argued that the exclusion violated people’s right to equal treatment, due to the discrimination against people engaged in manual labour, those with disabilities, etc. The recent reports of people in old age homes being denied pension due to Aadhaar issues was also cited.

The Bench cited that the exclusion may be either due to infrastructure or due to irremediable factors like old age. In the first case, this could be remedied through upgrades. When the petitioners raised the point on how exclusion was to be prevented in the meanwhile, the state countered this saying that nobody has been excluded due to the lack of Aadhaar.

Exclusion cannot be ascertained by citing laws

The State cited Section 7 of the Aadhaar Act, which allows a person to show his Aadhaar card if authentication fails, and Section 31 of the Act, which allows a person to upgrade his biometrics. Exceptions for persons who cannot provide biometric data for any reason under Regulation 6 of the Aadhaar (Enrolment and Update) Regulations, 2016 were also cited. The state argued that the Aadhaar Act in no way contemplated exclusion at either the enrolment or authentication stage. The State argued that arrangements were made in all blocks and talukas to have alternatives available for such cases.

The Bench insisted that in a country as diverse as ours, nobody should be excluded, to which the state responded that people are not being excluded.

The petitioners countered this, stating that there are serious problems on the ground, and the issue of exclusion cannot be ascertained by reading out the provisions of the Act and regulations.

UK’s ID card database

The destruction of UK’s ID card database in 2011, a database that was designed to hold the biometric and other data of people who had registered for the ID card was also discussed. Many of the arguments that were made against the database were brought to the Bench’s notice, such as that the system was intrusive and ineffective, and a compromise of the database affects security. The petitioners argued that Aadhaar was identity ‘plus’, where the plus indicates identity data with metadata.

Section 7 not essential to the Aadhaar Act

Lastly, the petitioners argued that Sections 3 (enrolment for an Aadhaar number), 4 (properties of an Aadhaar number), 8 (Authentication of an Aadhaar number) and 57 (Act not to prevent the use of Aadhaar numbers for other purposes) are at the heart of the Aadhaar Act. Section 7 (Proof of Aadhaar needed for certain subsidies, etc.), they argued, was not key to the Act, since even in its absence, the government could have achieved the same objective by amending the Food Security Act.

Here, it is important to note that it is this section, Section 7, which establishes the connection of the Aadhaar Act to the Consolidated Fund of India, which, in turn, is used to justify the passing of Aadhaar as a money bill. In the absence of this section, the Aadhaar Act only establishes a new mode of identification.

The petitioners further argued that Section 7 authorises the government to say that Aadhaar can be the only way to get subsidies. They argued that a person’s entitlements depend on their ‘status, and not their identity’. For example, a pensioner may have a pension card, but still be denied his pension on the grounds of Aadhaar.

The petitioners argued that all forms of identity, which are otherwise acceptable, have been excluded by this Act. When you consider Section 57, for example, even a private person can use this to exclude previously acceptable forms of IDs, such as passports, and insist on Aadhaar. The petitioners argued that Article 21 guarantees choice, and this has been taken away through this Act.

Voluntary smart cards

Lastly, the petitioners drew the attention of the Bench to Israel’s smart ID system, where users could use the card to avail benefits and services if they wished to do so. The system used biometric authentication and has a database, but the database lacks any identifying information.

In summary, the petitioners argued that there can be an ID card, but it must be voluntary, authentication data must be on the card, it should not collect data, and the people should have the right to alternatives.

The arguments for the petitioners will continue on Tuesday.

Sources of the Arguments: Live Tweeting of the case from the 

Twitter handles  @SFLCin, @prasanna_s and @gautambhatia88

The author is lawyer and author specialising in technology laws. She is also a certified information privacy professional.

Published Date: Feb 09, 2018 17:38 PM | Updated Date: Feb 09, 2018 17:38 PM

12915 - SC flags exclusions under Aadhaar - The Hindu

SC flags exclusions under Aadhaar

Krishnadas Rajagopal

NEW DELHI, FEBRUARY 08, 2018 21:59 IST

The government insists that the law does not exclude anyone from accessing their entitlements because of authentication failures on fingerprint and iris scanners. File  

MORE-IN

Aadhaar and cash transfers

Govt. obliged to ensure entitlements irrespective of authentication methods: court

The Supreme Court on Thursday asked the government and UIDAI whether it was not their obligation to ensure that ordinary people, especially pensioners and the marginalised sections, were able to access their entitlements till an “adequate mechanism” for authentication of identity under the Aadhaar Act is put in place.

Justice D.Y. Chandrachud, one of the judges on the Constitution Bench led by Chief Justice Dipak Misra hearing the challenge to the Aadhaar law, was responding to Additional Solicitor General Tushar Mehta, who read out a communication by the Cabinet Secretary in December last year, informing that possession of Aadhaar is enough to access entitlements if online authentication is not feasible.

Nationwide problems

“This shows that the Cabinet Secretary, as late as this, perceived a countrywide problem,” Justice Chandrachud reacted.

But the government insisted that the law does not exclude anyone from accessing their entitlements merely because of authentication failures by fingerprint and iris scanners.

Justice D.Y. Chandrachud, on the five-judge Constitution Bench, termed exclusion of people from their rightful entitlements because of biological reasons like old age was of a “permanent nature” unlike exclusion due to infrastructural failure like lack of electricity, Wi-Fi or biometric scanners in certain regions of the country. The latter can be remedied, while the former cannot, the judge pointed out to the government.

The court was hearing submissions by senior advocate Kapil Sibal, on behalf of petitioners, that Aadhaar was a scheme which “works against people like the poor, the marginalised and the old who already have entitlements.”

He submitted that the elderly were unable to get their pension because the scanners were unable to read or scan their fingerprints or irises.

“Nobody is being excluded. It is enough to furnish proof of Aadhaar number wherever infrastructure is not functioning. That is what the government wants,” senior advocate Rakesh Dwivedi, for UIDAI, countered by reading out provisions from the Aadhaar Act.

Lack of awareness

“But many people are illiterate and may not know about these provisions. You (government) have to take care of them,” Justice A.K. Sikri, on the Bench, reacted.

Attorney-General K.K. Venugopal intervened to say that there was no need for an interim order as the government had extended the deadline for Aadhaar linkage to subsidies, benefits and services to March 31, 2018. Chief Justice Misra said there was no need to pass any interim orders for now and the hearing should proceed. “We are not taking any note of that,” Chief Justice Misra said.

Justice Chandrachud, however, at a later point in the hearing, observed that “authentication is at the heart of the matter”.

12891 - "What is wrong in one identity for one nation? We are all Indians," says SC judge - The Hindu

"What is wrong in one identity for one nation? We are all Indians," says SC judge

Krishnadas Rajagopal

NEW DELHI, FEBRUARY 07, 2018 18:34 IST

“Yes, we are all passionately Indian. But we are much more than our Aadhaars. You [government] cannot reduce me to just one identity [Aadhaar],” argues Kapil Sibal.

Justice Ashok Bhushan, a member of the Supreme Court's Constitution Bench hearing the Aadhaar petitions, said on Wednesday that he found nothing wrong in the premise of 'one identity for one nation' as “after all, we are all Indians”.

The judge was responding to a submission made by senior advocate Kapil Sibal that a citizen may run the risk of being branded an “anti-national” if he or she is found without an Aadhaar.

Mr. Sibal argued that the “one-nation-one-identity” principle floated through the Aadhaar scheme left no room for alternative government approved documents to establish a person's identity. Aadhaar became the sole record by which a person could establish his identity, or he ran the risk of a “civil death”.

“So what is wrong in one identity for one nation? We are all Indians,” Justice Bhushan said.

“Yes, we are all passionately Indian. But we are much more than our Aadhaars. You [government] cannot reduce me to just one identity [Aadhaar],” Mr. Sibal said.

Justice Bhushan observed that he did not want to go into the point any further. However, Mr. Sibal said he wanted to argue on the point. “I am not going to make a political argument. I am going to make legal arguments against this one-nation-one-identity move,” he said.

Justice A.K. Sikri, also on the five-judge Bench led by Chief Justice Dipak Misra, intervened to put matters in perspective. He summed up that what Mr. Sibal meant was that a person's identity as an Indian should not be dependent on whether he has got Aadhaar or not.

Justice Bhushan then referred to Section 57 of the Aadhaar Act to justify the use of Aadhaar for purposes other than accessing subsidies, benefits and welfare services. The petitioners had challenged the government move to link Aadhaar to mobile phones and bank accounts.

“Aadhaar can be used for other purposes. The Aadhaar Act does not confine the use of Aadhaar to it alone. It [Aadhaar] can be used to establish a person's identity under any other Act,” Justice Bhushan interpreted the provision.

“Blanket power”

But Mr. Sibal said such an interpretation of Section 57 would give the State “blanket power” as regards the use of Aadhaar.

“My interpretation is that this section says it is my choice to produce Aadhaar. Nobody, neither the State or private corporations, can prevent me from doing that. On the other hand, an unlimited use of Aadhaar under any law will have horrendous results,” he responded to the Judge.

Mr. Sibal said his interpretation of Section 57 was “consistent with the constitutional scheme of liberty and choice under Article 19 of the Constitution”.

He read out from a staff paper published by the Reserve Bank of India's Institute for Development and Research in Banking Technology that the Aadhaar central database or the Central ID Repository (CIDR), where the biometric details are stored, may become the “single target” and “single point of failure” for internal and foreign attacks.

“But theoretically every database can be hacked. This staff paper only highlights the need to protect databases,” Justice D.Y. Chandrachud reacted to the submission.

Mr. Sibal pointed out how personal information of private individuals are floating in public domain as metadata, which needs to be protected from exploitation. He referred to how a railway software linked with Aadhaar could access every train journey taken in the past.

“But is that because of Aadhaar or the software?” Justice A.M. Khanwilkar asked.

12890 - Vulnerability of personal data for Aadhaar violation of rights, Supreme Court told

Vulnerability of personal data for Aadhaar violation of rights, Supreme Court told

IANS|

Updated: Feb 07, 2018, 06.58 PM IST

NEW DELHI: The Supreme Court on Wednesday was told that vulnerability of citizens' demographic and biometric data collected under Aadhaar to leaks is itself the violation of their right to privacy. 

"Vulnerability (of personal data collected under Aadhaar to leaks) is violation of rights," senior counsel Kapil Sibal told the five judge constitution bench headed by Chief Justice Dipak Misra. 

Appearing for West Bengal government, Sibal said that the functioning of the digital world was vulnerable to the sabotage and pointed out no other country in the world has such a centralised demographic and biometric data of its citizens. 

Telling the court that there was "no system of the world that can't be hacked", he said if one goes to railway booking counter and feeds Aadhaar number, then it would reveal all journeys they had undertaken by trains in the past. 

Pointing out that same was the case with air journeys, Sibal asked: "Why should the state know where I am going and what I am doing?" 

At this, Justice A.K. Sikri recounted how he once took his wife for a Chinese dinner and asked for a rice dish they had eaten during their last visit five months back but whose name they were not able to recollect. After a short while, the waiter returned with the print-out of their five month old bill.

Justice D.Y. Chandrachud described the entire episode as "scary". 

A statute, Sibal said, has to be "consistent with the provisions of the constitution" and citing Section 57 of the Aadhaar Act, 2016 asserted that the provision, it was a person's choice to produce Aadhaar number to establish their identity. 

When Justice Ashok Bhushan said that under the said provision, Aadhaar can be used to establish the identity of the persons under other statutes, Sibal said that any interpretation other than that it was voluntary to use Aadhaar for establishing one's identity would be "horrendous". 

As Justice Bhushan asked: "What is wrong with one nation, one identity? We are all Indians", Sibal said: "Yes we are all Indians. Passionately Indian. But we are more than our Aadhaars." 

Further dwelling on his arguments, Sibal said, "Digital world knows more about you, than you know about yourself." 

He told the court that there is an app called "moodpanda which rates and tracks your mood"and in a lighter vein told the bench "We would love to use it to see Your Lordships' mood in the Aadhaar case." 

"Unlike smart cards which require several pieces of sophisticated equipment such as a card skimmer and card printer in addition to sophisticated software and advanced technical knowledge, most biometric readers in India today can be defeated by a child with no technical knowledge using Fevicol and wax," he claimed. 

Besides West Bengal government, the former Karnataka High Court judge K.S. Puttuswamy, Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon and others have assailed the constitutional validity of Aadhaar Act on the touchstone of the fundamental right to privacy. 

Hearing will continue on Thursday. 

Read more at:

//economictimes.indiatimes.com/articleshow/62822717.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

12880 - Bengal uses PM Narendra Modi's Davos speech to assail Aadhaar scheme in Supreme Court - TNN

Bengal uses PM Narendra Modi's Davos speech to assail Aadhaar scheme in Supreme Court

PTI | Feb 6, 2018, 20:33 IST

NEW DELHI: West Bengal on Tuesday used Prime Minister Narendra Modi's speech at Davos that one who controls data would control the world to assail in the Supreme Court the ambitious Aadhaar scheme, saying the Centre would control personal information of citizens to have a grip over them.

The Mamta Banerjee government was putting forth its arguments before a five-judge Constitution bench headed by Chief Justice Dipak Misra which is hearing a clutch of pleas challenging the constitutional validity of the Aadhaar scheme and the enabling 2016 law. 

Senior advocate Kapil Sibal, appearing for the West Bengal government, referred to parts of Modi's recent speech at the World Economic Forum at Davos. 

"Whoever controls data is the most powerful and can shape the world," Sibal said quoting the prime minister. 

Using the statement to buttress his submissions against the Aadhaar scheme, Sibal said it meant that "who controls data in India will control India" and the state will use the power like "never before". 

He told the bench, also comprising justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, that Aadhaar was nothing but the Right to Information of the State and the question was can it be held as constitutional? 

"The answer is 'no'," Sibal added. 

He said that it was the most important case to be decided by the apex court since independence and it was not the issue as to how much money the government was going to save, rather, the key point was whether citizens can be deprived of their fundamentals rights including the right to have choices. 

"Digital world is far more susceptible to manipulations than the physical world," he said, adding "no legislation can or should allow an individual's personal data to put at risk". 

Sibal further said that no technology was safe and moreover, no assurance can be given that personal data of citizens would remain safe in digital space. 

"Biometric, core biometric and demographic information of an individual is irretrievable once it becomes part of the digital world," he said, adding that such information, if put in digital domain, were like "genie which is out of the bottle" and can never be put back. 

He said that the digital world was a vehicle to benefit "information economy" and the present move of the government in the form of Aadhaar would create an architecture of "an informational polity having "far-reaching consequences impacting most of personal rights which are constitutionally protected". 

Referring to provisions on deactivation of Aadhaar, Sibal said, "what kind of power is this? This is the power to cause civil and digital death (of a person)." 

He gave an example of a woman being denied widow pension on the ground that she does not have Aadhaar and said, "I am entitled for widow's pension because of my status and my entitlement has noting to do with my identity." 

The bench said the constitutionality of a law has to be judged on generality of cases and not on exceptional cases. 

"How does the court decide what level of risk is proper or not? Should the court get into this or should it be left to the legislature," the bench asked. 

Sibal would resume his submissions tomorrow. 

Earlier in the day, senior advocate Shyam Divan, who appeared for those opposed to Aadhaar scheme, referred to a report on deaths caused due to starvation in Jharkhand as the ration cards of the victims were not linked with Aadhaar and said that the issue pertained to exclusion, death and dignity. 

These reports were about "extreme situations" and in a democracy, there has to be an element of choice and Aadhaar should not be imposed, he said, adding there were other ways to weed out leakages in welfare schemes. 

Divan said persons, who cannot authenticate identities under the scheme, are often treated as "ghosts" and this cannot be tested on the parameters of fundamental rights. 

He said once an individual is enrolled, he is not allowed an opt-out and a person should be given a right to opt out, if he finds out that his biometric data is being misused. 

"Many people, who now wants to opt-out had said that there was no genuine informed consent at the time of enrolment or they were not even aware that there is need for consent..," he said. 

Citizens' data have been made available to private firms for commercial purpose and architectural design of UIDAI was such that it has very little control over this, he said, adding that there is no fiduciary relationship between the individual and the person collecting the data. 

The bench took an example of credit card fraud and wanted to know whether this can be possible with Aadhaar. 

It is possible to hack into these systems, which are not as secure as the central depository, Divan responded.

"Some of these leaks can be plugged but the basic architectural design of UIDAI is faulty and biometric data is easily compromisable," he said.

Referring to an RTI reply, Divan said that enrolment of 6.23 crore people for Aadhaar was rejected because of duplicates as the UIDAI system works on probabilistic system.

TOP COMMENT

Adhara should have been used by the Government exclusively for administrative purpose. For General purpose, like opening Bank A/c, or obtaining phone connection, it should have allowed the use of Adhara Number only without sharing bio metric data with private parties.

Rohan

Divan concluded his submissions and said the State may say that "I will choose to recognise you only in this manner, otherwise you cease to exist? The body cannot be used as a marker for every service".

The apex court had on December 15 last year extended till March 31 the deadline for mandatory linking of Aadhaar with various services and welfare schemes of all ministries and departments of the Centre, states and Union territories.