This is a record of the proceedings in the Supreme Court bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the previous days’ proceedings here: Day 1, Day 2, Day 3, Day 4, Day 5, Day 6, Day 7, Day 8, Day 9, Day 10, Day 11, Day 12, Day 13, Day 14, Day 15, Day 16., Day 17, Day 18 and Day 19.
Attorney General K.K.Venugopal (written submissions here), appearing on behalf of the Union of India commenced his arguments saying that there are many technical aspects in this case involving security, storage of information, steps taken to prevent leakages etc. He said an enormous effort has been put in to ensure security. There have been sixty committees since 2006. He said that these committees have also examined alternatives like smart card. He asserted that Aadhaar is not a fly-by-night scheme, but a serious effort to insulate deserving beneficiaries from the effects of corruption.
AG said that many countries have adopted a unique identification system. The World Bank has looked into every aspect in a report called Identification for Development. The World Bank has referred to Aadhaar as well in that report.
AG said that he will explain how security is protected at every step from enrolment to CIDR. He said that the CEO of UIDAI has prepared a power point presentation and he can also explain it to the Court. He will be able to answer all questions related to Aadhaar.
AG read out the qualifications of the CEO of UIDAI. He said that the CEO can make a technical presentation on the afternoon of the next day, at 2:30pm. Chief Justice of India asked the AG to first make his legal contentions, particularly on the subjects of privacy and anonymity. CJI also wanted to hear about mass surveillance.
CJI said that petitioners have argued on privacy, anonymity, dignity, surveillance, aggregation, presumptive criminality, unconstitutional conditions, absence of a law, security. He asked the AG to respond to those. CJI said “In the name of security you can’t impose a stamping culture where everyone is stamped with an aadhaar. Inspite of assurance of safety, your database is not entirely safe.” He said he wants the State to refute all these contentions made by the petitioners.
AG said that many doubts and fears that have been raised will be clarified by the presentation and the State will be able to explain their legal contentions better. He says that there is also a four minute video showing the thirteen foot wall around the CIDR. (this comment has been the subject of much ridicule on social media, but it is unclear what the AG means – a physical wall as a data security measure?)
Justice Chandrachud said that the petitioners also began with a factual superstructure, so the AG’s request might be a fair one. Justices Sikri and Chandrachud thought that it may be better to take the factual background from the CEO. There may be a powerpoint presentation on the next hearing. AG says at the end they will also show a 4-minute video of the security arrangements in the building etc.
CJI asked him to begin first, then they would see.
AG said the core effort of the Aadhaar Act is to protect the huge amounts of money spent to bridge the gap between rich and poor. When the British left, poverty was 66% and illiteracy was 87% . Now both are down to 27%, but in absolute terms it is higher. He claimed that huge money has been saved by giving benefits and subsidies via Aadhaar and that the gap between rich and poor will reduce with use of Aadhaar. He claimed that the money being diverted was more than 1000 crore. Middlemen and public servants were diverting funds. Corruption was massive.
The AG said that even China is less corrupt than us according to Privacy International. So something had to be done. The Act was framed to take into account every fear, and have the least possible invasion of privacy. Under the architecture of the Act, the invasion of privacy is at the lowest possible level. Before the Act, the Court had ordered that Aadhaar be voluntary. So there should be no question of fundamental rights violations. If it was voluntary, how could there be violation?
The AG said that from 2009 to 2016 , Aadhaar was completely voluntary. But people still signed up for it. So question of coercion does not arise, at least until September 2016. He cited Munn v. Illinois, in which the Court upheld the power of the government to regulate private industries (relevance to Aadhaar unclear). He said that the Indian Supreme Court has said that the right to life is not a right to a mere animal existence, but a right to live with dignity.
Justice Sikri commented that it’s an interesting question when two rights clash – such as right to privacy and right to life – in this case both sides are invoking the right to dignity.
The AG said that there is a long line of decisions that have established under Article 21 various rights including dignity shelter etc and that Aadhaar is a measure to secure them all. Justice Sikri observed that it is a conflict were both parties are invoking Article 21. The AG said that Article 21 encompasses right to employment, education, shelter etc. Aadhaar act is helping in achieve all these rights for the people.
The CJI paraphrased the AG and said that he is basically making the argument of reasonableness.
Justice Sikri says there’s a clash between right to life and right to privacy. He said that people are getting excluded. There have been various affidavits filed proving the same. The CJI said that the AG’s argument seems to be that the individual right to privacy must give way to the right to distributive justice.
The AG said that in this country, if you are poor, you become invisible. Justice Sikri said that this argument must be dealt with in the context of exclusion.
The AG says that NGOs are filing these affidavits. Not a single person has come forward and said that they suffered due to Aadhaar – the Court hadn’t heard from any affected person.
Justice Sikri said that exclusion and the various affidavits before us puncture the reasonableness claims and added that perhaps the presentation will address it.
Justice Chandrachud said that it cannot be said that individual rights are subordinate to distributive justice. Economic and social guarantee is not antithesis to political guarantee and it is not necessary to forgo of political liberty for the sake of economic and social justice. He gave the example of Bengal famine and the Maharashtra famine. (This is Amartya Sen’s argument that famines don’t occur in democracies because of the freer flow of information.)
There was some discussion between the AG and the Bench on the causes of the Bengal famine. Justice Chandrachud said that people died during Bengal famine due to lack of information. During the famine in Maharashtra in 1970s per capita income went lower than Sudan but people did not die because information was not cut off. The AG disagreed and said that Bengal Famine was more due to Churchill prioritising war effort.
The AG asked about the Fundamental Rights of poor people to exist without hunger and lying on the pavement that would prevail over the right to privacy. Justice Bhushan remarked that the poor have an equal right to privacy. Their rights can’t be violated any more than the rights of the rich and that all these rights do not trump right to privacy. They coexist.. The AG says that this is a question of balancing rights and not a question of violation.
The AG was adamant that privacy cannot be a sole ground to deny these millions of people other rights. Justice Bhushan did not agree with the proposition. The AG asserted that those two rights have to be balanced and Court to make a value judgment.
The AG repeated the point that there can be no question of violation of fundamental rights before 2016, because it was voluntary. Justice Chandrachud said that it’s not so simple. When people agreed to obtain Aadhaar, they did not accept a surrender of their data, or commercialisation. Besides, the safeguards of the Act didn’t exist back then. AG said that the poor people who were the beneficiaries between 2009 and 2016 have not complained.
The AG had earlier mentioned that these are ‘NGOs’ that have come arguing for privacy and no deprived individual had come to Court. Justices Chandrachud and Sikri disagreed and pointed to multiple affidavits and a party in person who addressed them. (the AG should have known this as a part of preparing for the case)
Justice Sikri said that it’s not limited to that class – that is, the class of section 7 beneficiaries. The AG said that as far as bank accounts, income tax and phones are concerned, we will deal with them separately and repeated that before 2016 it was always voluntary and there was no question of Fundamental Rights violation. Justices Chandrachud and Sikri asked how there could be waiver or assumption of informed consent. Justice Sikri said that people who enroled that time (not for benefits or subsidies) say there was no informed consent that time.
The AG repeated that the fundamental question in this case is one of balancing. The AG said that Aadhaar is an enabler for millions of residents. It enables their right to food, livelihood and pensions. A handful of petitioners want it to be struck down on grounds of privacy. He said that the object of the Act is targeted delivery for genuine beneficiaries. It furthers the Article 21 right of the poor people of India, and advances the Directive Principles. He said that aadhaar is facilitating Indian residents to get subsidies, benefits, scholarships etc. It’s an efficient, transparent delivery of services. It is in consonance with the directive principles of state policy. A handful of petitioners are challenging it.
The AG denied that the deaths in Jharkhand reported as due to Aadhaar were actually not so. He said one of them had 30,000 in her bank account and could not have died due to starvation!
The AG read the statement of objects and reasons of the Aadhaar Act.
The AG cited the Rajiv Gandhi statement on only 15 paise of every 1 rupee reaching the intended benficiaries in welfare scheme. Justice Sikri joked that some economists have gone into this figure and proved him wrong. He laughingly said it is 17 paise, not 15!
The AG then quoted from a 1997 World Bank Report on India about spending on leakages.
The AG quoted a finance commission report. In his readings, he made the argument that human discretion at multiple levels including last mile is the reason for corruption and leakages and that Aadhaar replaces that human discretion with a simple biometric match tech.
The AG then read a report by Centre for global development.
The AG read SC’s PUCL right to food case, which had made specific references to the DP Wadhwa Report, and recommending computerisation of PDS. He read exceprts from the Wadhwa committee report as mentioned in the case of PUCL v. Union of india.
The AG read the extract from the PDS judgment that asked Nandan Nilekani to suggest ways of computerising the PDS. The AG said that Nilekani has conceptualised the UIDAI. The AG read out the part of the PUCL judgment approving issuance of Aadhaar and linking to PDS.
(Bench rose for lunch. Resumed at 2 30pm)
The AG said that Section 12 of the National Food Security Act envisages the use of Aadhaar for better targeting and computerisation, and for unique identification.
AG: Section 12 of NFSA also envisages Aadhaar for targeted distribution of food grains and to record transparent delivery of the same.
The AG quoted Binoy Viswam v. Union of India judgment on Aadhaar/PAN (from last June), and said that in that case, the objectives of Aadhaar had been endorsed by a bench of Justices Sikri and Bhushan. He said Aadhaar prevents multiple identifies and provides one unique identity. He read out the part of the Aadhaar/PAN judgment that cited the paras that quote from Jean Dreze and Amartya Sen book on the need for sustainable development. (Jean Dreze has filed 2 affidavits in this matter contradicting the stand of Government on the effectiveness of Aadhaar and detailing the exclusion caused by Aadhaar in Jharkhand)
The AG read out the part of the Aadhaar/PAN judgment that spoke about ghosts in the system, and cited Rajeev Gandhi’s aphorism that out of 100 rupees of welfare, only 15 reach the intended beneficiary. He read out the part of the Aadhaar/PAN judgment that spoke about cracking down on black money and money laundering, and the problem of multiple PAN numbers, and the benefits of centralised systems like the UIDAI to combat this, as well as combat terrorism.
The AG read out the part of the Aadhaar/PAN judgment that says that Aadhaar is the most robust way to achieve deduplication.
The AG read out the part of the Aadhaar/PAN judgment that rejected the Article 14 challenge.
Justice Sikri asked how the Employees Pension Scheme was covered under Section 7 of the Aadhaar Act. It is a person’s right to get pension. The AG says that this was done to prevent fake pension cards.
Justice Sikri reminded him that he still hadn’t answered on the point of exclusion.
The AG then wanted to go through the list of all 144 Section 7 notifications. Justice Sikri interrupted and asked about the first notification relatable to Employees Pension Scheme. He asked where was the question of leakage or fraud in that case?
Justice Sikri said that exclusion is aggravating when such rights are involved. Justice Sikri asked about a hypothetical situation where a pensioner may be abroad for the moment with his son but wants his pension credited. Why is he now required to present himself for Aadhaar? The AG said there has to be an actual case. He said there are no deprived petitioners here, but these are PIL petitioners. He asserted that there are no actually excluded person complaining.
Justices Chandrachud and Sikri didn’t look convinced.
Justice Chandrachud said that some of the rough edges of the Law may need to be softened, to avoid exclusion. The AG said that they can deal with a specific case if someone complains, but nobody has complained.
The AG said that there must be some provision in the pension act to give pension to an NRI. Such a person would not be governed by the Aadhaar Act. He showed circular related to pension for NRIs. Justice Chandrachud said that pension accounts are individual accounts. There was no question of impersonation.
The AG again quoted the World Bank’s report as a response to Justice Chandrachud’s query.
Justice Chandrachud asked again about multiple problems with requiring Aadhaar for pensioners…people who have dementia etc….these are all real problems.
The AG referred to the World Bank saying Unique Id is the only way to progress
The AG said that there are exceptions for individuals whose fingerprints and Iris scans won’t work. For eg. People suffering from leprosy.
The AG read from page 118 circular in the Union’s latest affidavit. He said that this is a welfare state and that the government will not leave anyone in the lurch or deny anybody.
Justice Chandrachud said that pension doesn’t come under “subsidies, benefits and services” under section 7. It is an entitlement.
The AG said that pension is given out of the consolidated fund of India. Hence it’s covered under the definition of Benefit under the Aadhaar Act.
Justice Chandrachud said that we should acknowledge that there’s a problem of financial exclusion in our country. As recently as December 2017, the Cabinet secretary had agreed. To say that someone has not come to court therefore there’s no exclusion is wrong. He wanted the Government to come up front about it and tell the Court what measures have been taken.
The AG promised to lay those before the Court, but for the moment wanted to read the transcript of his recent lecture that he gave titled “Poverty as a challenge to Human Rights” (Page 42 of the written note he submitted).
The AG said that Mahatma Gandhi said that the world has enough for everyone’s needs but not everyone’s greed. He was quoting various people (Roosevelt, Nelson Mandela and the UN) to stress on the point that poverty is a huge problem and Aadhaar will be a step to solve it.
The AG said that 300 million people are poor in India and they cannot be deprived of their right under Article 21 for the privacy interests of a few petitioners or the elite. He asked the Court to please weigh the balance and see if these people want privacy or a life of dignity. He said that on the one side you have the human rights of 300 million poor people. On the other side you have a state of mind.
The AG read page 112 of the latest affidavit (link above) – Cabinet Secretariat note that seeks to make exceptions to ensure no exclusion. He said that the Aadhaar act also provides exceptions and backup authentication in various regulations during contingencies like power cut, network connectivity, Biometrics not working etc.
The AG said that there are mechanisms under the regulations to ensure seamless delivery of benefits. Until the point an individual gets an Aadhaar, he is allowed to use alternative forms of ID. If biometric fails, then an individual shall be given the benefit on showing Aadhaar no.
The AG read out various other handling mechanisms such as doorstep delivery and notifications from the Ministry of Food He said that this is an ongoing process.
The AG said that exclusion cannot be a ground of striking down the project. Whereever there are problems Govt will take care of them, he assured.
The AG claimed that the highly researched ID4D report says this is the only way of development!
The AG said that Aadhaar’s results will show in a few years. They have already fixed problems like misappropriation, multiple identities. They are working towards making this project more effective. He again cited world banks report and says that Aadhaar is the only mechanism for development. He said that after the World Bank Report, there cannot be a second thought about the benefits of Aadhaar. He handed over the report titled Identification for Development.
The AG read out the Foreword of the World Bank Report which says that official identification is more than a convenience, it is a fundamental human right. It helps in economic development, participation in electoral process, and helps the govt in providing benefits to the people. It is a key enabler of other sustainable development goals. He read out the part of the World Bank Report that says that a lack of identification specifically affects women and children adversely.
The AG read out the part of the Report that talks about delivery of services to the poor and making everyone count by delivering an identity. He said universal digital identity is becoming important around the world. The world bank recently launched “identification for development” report.
Justice Sikri asked about the necessity of centralising the data etc – why aren’t lesser intrusive methods considered.
The AG said that the World Bank has stated that this would help development and that it should be a universal ID.
Justice Sikri agreed on unique identification, but asked again, why not use a less intrusive means. Why is Aadhaar data stored in a centralized database over a long period of time? There’s a risk of metadata collection. He said that the doctrine of proportionality is important here. He took the example of Singapore, where the data remains on the card.
The AG replied that the smart card was considered but it would not work in the Indian context. The AG said that there is no question or possibility of aggregation.
Justice Sikri questioned on proportionality and said there are many admissions and they were read out by Petitioners including 49k enrollers having been blacklisted.
The AG said that all this will be explained by the CEO of UIDAI in his presentation tomorrow. He said that aggregation is not possible with Aadhaar. He said that the CIDR does not have the purpose of the transaction. (Medianama: However the Aadhaar API does have it)
Justice Chandrachud observed that authentication records are stored, regardless.
Some discussion followed on the presentation to be made by the CEO. The AG pressed again for the CEO of UIDAI to be allowed to make a presentation on the next day. The CJI, still non-committal, replied that they would let him know. The CJI asked the AG to submit the presentation before the Court in a word format beforehand.
Court rose for the day. Advocate General will continue submissions on behalf of the government at 11:30am on the 22nd March 2018.
Summary of hearing based on tweets by Prasanna S Gautam Bhatia and SFLC