Five-Judge SC Bench Resumes Hearing of Aadhaar Validity

The Supreme Court commenced the final hearing on petitions challenging the constitutional validity of Aadhaar on Wednesday, 17 January and continued for a second day on Thursday. The third day of hearings is scheduled for 23 January.

A five-judge bench comprising CJI Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud, and Justice Ashok Bhushan, are presiding over the hearing.

  • A five-judge Supreme Court bench began hearing the petitions challenging validity of Aadhaar on 17 January
  • The hearing comes after a nine-judge Supreme Court bench upheld privacy as a fundamental right in August 2017
  • Centre on 7 December extended the deadline for mandatory linking of Aadhaar to 31 March 2018 for availing welfare schemes
  • The first petition challenging Aadhaar was filed by Former High Court Judge Justice KS Puttaswamy in 2012
  • The petitioner argued that there was no way to opt out of the Aadhaar and that people’s information is given to private parties

Aadhaar Case Resumes

A five-judge Constitution bench has resumed hearing arguments in connection with the constitutional validity of Aadhaar in the Supreme Court

Day 2 of the Hearing Concludes, Hearing to Resume on 23 January

Prior to the end, Divan had emphasized that civil-political rights like the right to privacy were complementary with socio-economic rights, so protecting privacy and uplifting the poor didn’t need to be at loggerheads.

CJI Dipak Misra asked Divan to refer to a specific paragraph of the privacy judgment, about the dangers to privacy in the “age of information”. Divan proceeded to read out a specific paragraph 306, which dealt with issues of information privacy, specifically how even metadata could be used for data mining and data profiling.

The hearing will now resume on 23 January.

“In a Digitized World, the Government Has to Be an Ally of Citizens, Not Its Adversary”

Divan emphasizes something the Supreme Court held in the privacy judgment:

"Public welfare can only be sustained when individual liberties and freedoms are respected." -

He also counters the argument that if people are willing to give information to companies, they should be willing to give this for Aadhaar as well.

Noting the way in which corporations pose risks to privacy, he says that the government should be looking to protect the privacy of its citizens, and should be working with them to do so.

Continuing to read from Justice Chandrachud’s judgment, Divan points out how physical interference is no longer required to violate someone’s privacy, but that details of their transactions is enough to profile everything they do.

"Aadhaar Violative of Fundamental Right to Privacy"

Divan now moves on to arguments against Aadhaar in the context of the fundamental right to privacy, affirmed by a 9-judge bench of the Supreme Court in August 2017.

"The procedure for deprivation of right to personal liberty must be just, fair and reasonable." - Shyam Divan

He begins by referring to how that case came about – because in the hearings against Aadhaar in 2015, the government had argued that the Constitution didn’t guarantee a fundamental right to privacy.

He proceeds to reference relevant paragraphs of Justice Chandrachud’s own judgment from that case.

He notes how the Court found that privacy existed as a fundamental right in Article 21 of the Constitution, and was also a crucial part of other fundamental rights. He also points out how the right to privacy was based on ideas of dignity, autonomy and identity, which the Court had found to be part of the entire Constitution.

“Cannot Retrospectively Validate Fundamental rights Violations”

Justice Khanwilkar points out that the concerns raised regarding the lack of regulation are now validated by the Aadhaar Act 2016.

"Flaws in the old procedure violated fundamental rights. Violations of fundamental rights cannot be retrospectively addressed." - Shyam Divan

Divan finishes his arguments on the technical aspects of Aadhaar by reiterating the problem of linking multiple services with Aadhaar – that this enables round-the-clock surveillance from the cradle to the grave.

Divan also raises concerns about how Registrars functioned under the pre-Aadhaar Act system, who would hire private enrolment agencies.

These Registrars had the power to retain biometric data, and there was no government oversight of the enrolment centers. He notes that the number of blacklisted operators rose to 49,000.

Bench Reassembles

The bench has reassembled after lunch to hear the petitioner’s arguments in the Aadhaar case.

Divan raised concerns with how Registrars functioned under the pre-Aadhaar Act system, who would hire private enrollment agencies. These Registrars had the power to retain biometric data, and there was no government oversight of the enrollment centers. He noted that the number of blacklisted operators rose to 49,000.

Bench Breaks for Lunch

After an hour of arguing, the bench has risen for lunch and will resume hearing at 2.30 pm.

Just before lunch, Divan had pointed out the hypocrisy in the Aadhaar Act 2016, which said that enrolling in Aadhaar is free and voluntary. This becomes academic when it is made mandatory for bank accounts, PAN cards, government scholarships and so on.

He had also been demonstrating how the figures for enrolment showed that only 0.03 percent of the population didn’t have an existing form of ID – which counters the very purpose of Aadhaar as it was originally envisaged.

Safeguards in Place Not Being Followed

Divan argued that there are significant problems with the way in which private parties were involved in the enrollment process. Justices Chandrachud and Justice Sikri ask how it’s different from giving information to private parties in daily transactions, or getting a mobile phone number.

"In those cases, the individual enters into arrangements with the private parties, based on contracts and understandings between them. With Aadhaar, there is no such relationship since the information is meant to be shared with the UIDAI, but was being done through people with whom even the UIDAI sometimes had no direct contractual relation. Prior to the Aadhaar Act, there was also no regulation – the private agencies doing Aadhaar enrolment were outside the control of the UIDAI and hence were using the data for their own commercial purposes." - Senior Advocate Shyam Divan

Justice Chandrachud refers to how MS Dhoni’s Aadhaar details were leaked. He asked about the safeguards put in place.

Divan mentioned an affidavit by Nachiket Udupa and Ankita Anand, who had been required to enroll for Aadhaar to get married. They had testified how they had tried to select the option supposedly there to withhold consent from data being shared with private parties, but that this wasn’t allowed. Thus even safeguards supposedly put in place weren’t being followed.

No Way to Opt Out, Information Given to Private Parties

Divan questioned the way in which the State seems to be announcing a “barter” when it comes to rights by linking everything to Aadhaar – to get access to these, you need to give your biometric details and be comfortable with being tracked for life.

Responding to a question from Justice Chandrachud, Divan said that there is no option for opting out, and challenges the fact that under the enrollment process, people were compelled to give our information to private parties.

"The risks of doing so were revealed by an investigation by Mail Today which found three enrollment agencies that were willing to reveal demographic information of the people who had enrolled with them." - Senior Advocate Shyam Divan

On this basis, the whole scheme from the way it begins is unconstitutional. To further illustrate the lack of informed consent, Divan pointed out that the enrollment form includes a no-objection provision for sharing of information, but not only are there affidavits from people saying they couldn’t opt out of sharing information, there was no counseling about the implications of this anyway.

Also Read: Excluded by Aadhaar: The Poor Who Are Denied Rations and Pensions

Lack of Informed Consent in Information Collection

The first issue raised by Divan with the process of collecting information, was the lack of informed consent. He points out that in the Aadhaar enrolment form, there is:

  1. No mention it’s voluntary
  2. No mention of biometrics
  3. No declaration or verification (including signature of enroller or enrollee) – normally when applying for any form of identity or proof, you have to declare that the information provided is true, but Aadhaar doesn’t have this, potentially encouraging fraud
  4. No counselling to explain the implications of signing up for Aadhaar
  5. No mention of the purpose for which data is being collected

Petitioner Addressing Three Problems with Aadhaar

Divan sets out the structure of his arguments. First, he will fully set out the way in which Aadhaar functions, then he will make arguments on how the right to privacy judgment relates to Aadhaar and then finally deal with the constitutionality of the Aadhaar Act 2016.

The challenges are trying to address the following three problems with Aadhaar:

  1. Problems with the process of collecting and using the information
  2. Problems with the integrity and security of information collected for Aadhaar
  3. Violations of fundamental rights of privacy, autonomy and free speech

Bench Assembles for Hearing on Day 2

Shyam Divan resumes arguments for petitioners, explaining the different kinds of verification technology that can be used.

Justice Chandrachud observes that fingerprints etc of manual labourers might be unreadable, and that readability of biometrics also affected by ageing. Divan, noting the poor quality of technology used for authentication, agrees.

Day 1 Hearing Concludes

Day 1: Key Takeaways

  1. The petitioners appear to be adopting a patient approach, trying to establish long-running systemic failures in the very concept of Aadhaar to the Court.
  2. It is evident that Divan and the others arguing against Aadhaar will not dive straight into the legal arguments, despite the positive ruling in the right to privacy case.
  3. The challenges to Aadhaar are not relying solely on the right to privacy, with strong additional arguments, including on the illegal passage of the Aadhaar Act.
  4. The petitioners are challenging the whole Aadhaar system, but the three broad prayers they are making show that they are prepared for contingencies, and are looking to ensure that even if the program is not struck down, it will not remain mandatory.
  5. The judges have shown admirable restraint, intervening in a very limited manner, and asking only the most relevant questions to understand the contours of the arguments. Will need to be similarly careful over the remaining hearings, while also not allowing the advocates free reign, to ensure proceedings do not get stretch

The hearing on day 1 of the Aadhaar in Supreme Court concludes. The Bench rises.

The key arguments advanced by lawyer Shyam Divan.

"Aadhaar Should Not Have Been Passed as a Money Bill," Say Chidambaram & Datar

Senior advocates Chidambaram and Datar explain how, in the petitioners’ view, the Aadhaar Act 2016 didn’t fulfil the criteria for a Money Bill – and that therefore the Act should not have been passed. 

They cite two landmark cases of the Supreme Court (Kihoto Hollohan and Raja Ram Pal) to say that the apex court has the power to review laws passed by Parliament on the basis of this irregularity. This is likely to pre-empt the government’s argument that Article 122 of the Constitution prevents courts from inquiring into proceedings of Parliament on procedural grounds.

Divan quotes the Parliamentary Standing Committee’s report which had said that the Bill in its form then could not be passed. He then goes through the government notifications on Aadhaar after the publication of the report and till the Aadhaar Act in 2016 to show the (lack of) changes during that time.

CJI Dipak Misra Raises Questions About Aadhaar Bill 2010

Chief Justice Misra first asks why the Standing Committee’s reports on the Aadhaar Bill 2010 are relevant to analysis of the Aadhaar Act 2016. Divan responds that the Aadhaar framework retained many of the problems identified in the old Bill.

The CJI then asks the petitioners to elaborate on the issue of the Aadhaar Act being passed as a Money Bill. P Chidambaram, representing one of the petitioners, explains what happened in Parliament. Arvind Datar explains the petitioners’ concerns about how this was done.

"Expenses on Aadhaar far Outweigh Savings," Reasons Shyam Divan

Shyam Divan begins arguing how the design behind Aadhaar is itself bad. The initial rationale provided by the UIDAI, to give everyone an identity, was specious since RTI queries revealed that the number of people for whom Aadhaar was their first form of ID was minuscule.

The key arguments advanced by lawyer Shyam Divan

Justice Chandrachud then asks about the objective of using Aadhaar to plug welfare leakages. Divan says at the outset needs to note that Aadhaar has to be a proportionate method, and also at this time, the expenses on Aadhaar far outweigh the savings.

DIvan adds that he will address this in detail further on in his arguments.

To highlight the longstanding concerns with Aadhaar, Divan returns to the Standing Committee on Finance’s report from 2011. This report on initial drafts of the Aadhaar Bill 2010 (essentially the same as the 2016 Act) found that the scheme “is riddled with serious lacunae and concern areas”. The Standing Committee had concluded that Aadhaar was being “implemented in an overbearing manner without regard to legalities and other social consequences”. Divan points to the Standing Committee’s concerns that civil liberties would be infringed by the surveillance and profiling possibilities of Aadhaar.

Justice Chandrachud also refers to the Standing Committee report where concerns were raised over the efficacy of the system when scaled up. Divan points to the approximately 6.2-6.3 crore people whose biometrics were rejected – further scaling would only increase these numbers, he argues. Divan also refers to the Standing Committee’s observations on how the United Kingdom abandoned a similar identity project because of the high costs, complexity, unreliability of technology and possible risks to the safety and security of citizens.

"Aadhaar Leads to Constant Tracking & Profiling," Reasons Shyam Divan

Divan now explains how Aadhaar sets up an architecture that goes beyond verification, but actually enables tracking of a person, allowing the creation of a complete profile of an individual’s actions.

Justice Sikri asks how this is different from giving biometrics to a foreign country when going there on a visa. Divan responds that your biometrics are only matched when you enter the foreign country, for instance at the new York airport. But once this is done, they don’t require your fingerprints (or something tied to your fingerprints) for transactions you enter into throughout the day.

Divan shows how this is the difference between pervasive and non-pervasive systems.

"Aadhaar becomes a pervasive system because you can build an electronic trail of what a person does. Since the program allows for cross-linking of databases, this can result in profiling." - Shyam Divan

He says that it doesn’t matter whether anyone is actually tracking an individual, but whether such an architecture is possible.

Justice Chandrachud observes that this would not be a concern if the data is used for the purpose for which it is collected. Divan says he will now establish how this is not happening.

'Was All Biometric Data Collection Illegal?' Asks Justice Chandrachud

The judges have now started to get involved. Justice Chandrachud notes that prior to the Aadhaar Act, none of the legal instruments governing Aadhaar mentioned biometrics. Despite this, biometric data was still collected – he asks Divan if this means that all information collected between 2009 to 2016 (when the Act came into place) was unlawful. Justice Ashok Bhushan notes that the guidelines were broad, and thus biometrics could be considered as covered.

Divan responds by saying that all biometric collection was patently illegal, which the Act was unable to fix. Justice Sikri then asked if the result of holding this illegal would mean that the entire Aadhaar database would need to be destroyed. Divan agrees.

Bench Reassembles

The 5-judge bench has reassembled after lunch, to resume hearing the petitions challenging Aadhaar.

Shyam Divan is now discussing how the UIDAI functions. Justice Chandrachud becomes the first judge to make any observation during the proceedings, noting that very few posts have been filled in the organization. Divan points out how this demonstrates the lack of governmental oversight in the organization, despite the implications of what it is meant to do.

Bench Rises for Lunch

The five-judge bench has risen for lunch. Hearing will resume at 2.30 pm.

Prior to breaking for lunch, Divan puts forth arguments on the exclusionary effects of Aadhaar. Noting that one cannot effectively live as a citizen of India without Aadhaar, he takes time to demonstrate that the petitioners before the court were not representing elitist concerns. He points to Bezwada Wilson (who has worked for rights of manual scavengers), Shanta Sinha (who headed the National Commission for Protection of Child Rights), Dr Kalyani Sen (who works with migrant women and women farmers), Arunda Roy (founder of MKSS, works with rural poor in Rajasthan) and Justice Puttaswamy (former judge of the Karnataka High Court).

He also noted that experts who work in the field on social issues like Reetika Khera and Jean Dreze, and security experts like Anand Venkat, had filed affidavits before the court demonstrating the exclusionary effects of Aadhaar.

Divan then takes the court through concerns with the underlying technology and system. He argues that the UIDAI doesn’t use a deterministic identity system, but a probabilistic one for biometric verification. This is leading to widespread exclusion from entitlements when biometrics don’t match. The issues with the technology and algorithms are compounded by the way in which enrolment was done through private agencies without any regulation or legal framework for seven years.

Divan Outlines History of Aadhaar Program

Divan now takes the court through the history of the Aadhaar program, and the challenges against it. When the scheme was originally proposed as a Bill in Parliament in 2010, he points out that the Standing Committee on Finance pointed out several flaws in it relating to privacy, security and the dangers of private players.

As Aadhaar began to be used for various schemes, in 2013 a two-judge bench of the Supreme Court referred it to a higher bench and directed that no person should face adverse consequences for not having Aadhaar. In 2015, a three-judge bench referred the matter to a Constitution Bench in light of the serious issues it involved, including whether privacy was a fundamental right. Divan reiterates the importance of the October 2015 order of the Court, which had held that Aadhaar was to be strictly voluntary till the legal challenges were fully decided. This order has never been overturned, recalled or even challenged.

Despite this, the Aadhaar Act was enacted in 2016 as a Money Bill (thereby bypassing the Rajya Sabha), which opened the door for making Aadhaar mandatory for certain services. From January 2017 onwards, the government started notifying mandatory Aadhaar linkage with not just public services, but private services as well. Linkage to income tax returns was brought in through the Finance Act, while linkage to mobile phones was brought in through an interpretation of the Supreme Court’s Lokniti order. Bank accounts were also asked to be linked citing rules under the Prevention of Money Laundering Act.

What the Petitioners Want

Divan proceeds to set out what the petitioners are asking for:

  1. A declaration from the court safeguarding the physical autonomy of individuals against the State;
  2. If this is not granted, then a right to opt out of the Aadhaar program and for their data to be destroyed is warranted;
  3. If the Aadhaar Act is held to be constitutional, the court has to pass an order guaranteeing that no citizens will be deprived of any rights or benefits because they haven’t enrolled for Aadhaar.

Mandatory Linking of Aadhaar

Divan reminds the court about the Aadhaar Act of 2016, and the subsequent notification in 2017, which made Aadhaar mandatory for multiple services.

Citing the Income Tax Act Amendment, which required phone linking of Aadhaar, Divan says that Aadhaar has been made mandatory for opening bank accounts, holding insurance policies, making transactions, mutual funds, among others.

Rounding up, Divan says,“Effectively today, you cannot live as a citizen of India without an Aadhaar.”

Divan further says that with the Aadhaar program calling for mandatory linkage of all essential facilities, it makes the Aadhaar number imperative to exercising fundamental rights and liberties. Failure to comply means their access to basic facilities can be ‘switched off’ by the State. It is being argued that this is not something that the Constitution allows.

Referencing the fundamental right to privacy which was affirmed in August 2017, Divan asks why citizens should not be allowed to protect their personal identity without giving personal information to the State, provided of course that they are willing to identify themselves in a reasonable way.

Divan Summarises Challenges Posed by Aadhaar

Divan summarises the contours of the challenges. There are two things being challenged:

  • The Aadhaar project/program
  • The Aadhaar Act

He argues that the two challenges are separate because the Act overlaps with part of the program, not the whole thing. The Aadhaar project challenge also involves problems with additional legislation, declarations and so on.

Divan emphasizes that the Aadhaar program is unprecedented in scope. He argues that cases and experiences from other countries support the petitioners’ arguments.

Arguments Begin

Bench of CJI Dipak Misra, and Justices AK Sikri, DY Chandrachud, AM Khanwilkar and Ashok Bhushan, has assembled.

Shyam Divan begins arguments for the petitioners. Attorney-General KK Venugopal interjects, asks for time to be allocated to each side since there are so many lawyers, representing several stakeholders. Advocate Shyam Divan replies saying that he can only give a broad estimate after the first week. He sets out the structure of his arguments.

The AG notes that hearings in the Babri Masjid case are scheduled to start in the first week of February. But Divan continues to set out the outline of the petitioners’ case.

Divan says that the petitioners' argument states “if Aadhaar is allowed to continue unimpeded, it will hollow out the Constitution.” He adds that at its core, Aadhaar inverts the relation between the citizen and the State.

Further questioning if the Constitution of India allows for every transaction to be recorded, Divan lays out the scope of the constitutional challenge posed by Aadhaar.

Bench Headed by CJI Dipak Misra to Hear Aadhaar-Privacy Row

A five-judge bench headed by CJI Dipak Misra will hear the petitions challenging the validity of Aadhaar.

The bench will begin the hearing at 11:30 pm on Wednesday.

The hearing comes after a nine-judge bench headed by former CJI Justice Khehar upheld privacy as a fundamental right in August, last year.

Also Read: Supreme Court To Start Final Aadhaar Hearing: All You Need To Know

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