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Constitutional Validity of Aadhaar, Day 30: “No right is absolute. Regulations are permissible”

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 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9, Day 10, Day 11, Day 12, Day 13Day 14Day 15Day 16., Day 17Day 18, Day 19, Day 20, Day 2Day 22, Day 23, Day 24, Day 25, Day 26, Day 27, Day 28 and Day 29.

The hearing began late at 12:45 pm due to another matter before the Bench.

Senior Advocate Rakesh Dwivedi resumed his arguments on probabilistic method. He referred to Section 7. He said that the algorithms which are probabilistic are not all identical. He said that Parliament was conscious of the exclusion that could happen. It was also aware of the digital divide. Hence, provided three alternatives under section 7.

Dwivedi said can there can’t be denial of service. There is an option to furnish proof of possession of Aadhaar number under section 7 if authentication can’t be done.

Justice Chandrachud asked whether the proviso to section 7 applied to a third alternative.

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Dwivedi replied in the affirmative. He said that it is applicable in case an individual has applied but has not been assigned Aadhaar number. He read the definition of ‘Enrolment ID’ under the regulations. He further read Regulation 12 pertaining to section 7. He said that there is no question of denial. Denial is something that should not happen, ought not to happen. Though he admitted that some more actions would be required to ensure this.

Shyam Divan requested the bench to direct respondents to reply to the supplementary questions submitted by the petitioners for them to prepare for rejoinder.

The CJI asked if Senior Advocate Dwivedi would conclude on the next day. Dwivedi replied that he would be able to finish by Tuesday (the hearing after that).

The Bench rose for lunch and reassembled at 2:30 pm.

Rakesh Dwivedi continued with his submissions saying that in the context of PDS system, the notification issued under section 7 said that for a limited purpose, ration cards are also included. He said that if for some reason, one member of the family is unable to authenticate, any other member of the family can come for authentication.

Justice Chandrachud asked whether there is any isolated pocket in the country where Aadhaar services have not been able to reach.

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Dwivedi said In such a case, alternative methods will apply.

Justice Chandrachud. asked the permeation rate in states like J & K, Sikkim, etc. Dwivedi said that he will get back to the Bench with figures. He said that as of now-pending the judgment, even if someone has not enrolled for Aadhaar, there’s no compulsion under section 7. There’s still time. He said that third alternative under Section 7 can apply only if the enrolment process has begun.

Dwivedi said that in case of PDS scheme, the central government is competent to replace the identification card with which benefit is to be obtained if it thinks that the latter is more reliable. Thus, it can replace the ration card with Aadhaar card. He said that every institution will have some kind of identification procedures and we will have to follow them. These are regulatory processes.

Dwivedi said that when you identify, it is a matter of dignity because you are recognised. We all strive to get recognised. It is a matter of pride. He said that no right is absolute. Regulations are permissible.

Justice Chandrachud said that there should be a choice of identity. If the choice is not there, it is not proportional.

Dwivedi said If you have to get benefits from an institution, you should comply with the requirements prescribed by it. He said that Aadhaar is unique and universally applicable. There is no language barrier like other ID cards.

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Justice Chandrachud said that as biometric are attached to every transaction undertaken, it ceases to be just an identification mark.

Dwivedi said that only one finger or one iris is used for authentication. It discloses no information.

Justice Chandrachud said that a fingerprint by itself doesn’t disclose any info, but when it attaches with all the other information, it forms a wealth of information. There comes the need of data protection.

Dwivedi said that data is disaggregated between different REs.

Justice Chandrachud said that in such a case, aggregation of data is all the more possible.

Dwivedi said that in most cases, authentication is done only once. Eg. PAN. It is for lifetime. For sim cards, it is done only at the time of obtaining it. So, he asked, where is this multiplication of authentication from morning to evening coming from? He said that realistically speaking, there’s no trail of authentication from morning to evening. No real time tracking is done.

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Senior Advocate Shyam Divan interjected saying that the demo of withdrawing Rs 100 using a thumbprint was shown in the court. That is tracking.

Dwivedi asked where it is provided in law that you need to give thumbprint every time you transact? You only have to link it with your bank account.

Shyam Divan gives the example of being asked for his thumb impressions everytime he needs to open a Fixed Deposit.

Dwivedi remarked that not everybody is capable of opening a Fixed Deposit everyday. It is done only once or twice in a year generally.

Dwivedi then came to the point on dignity. He said that there are two parts of the preamble. “To secure to all its citizens…” and “to promote among them all…” – he said that securing justice is a part of the basic feature of the Constitution. He said that minimum requirements to enable a man to survive to live is a position duty of the State. And it is for these minimum requirements that the Acts like NFSA, etc. are there.

Justice Chandrachud remarked that the Constitution protects dignity in all its forms.

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Justice Sikri said that food is a part of dignity and so is privacy. When there’s a conflict between the two, it has to be considered which should prevail, but, why can’t we say that there’s no conflict. Both are to be ensured.

The CJI said that the point was when you take fingerprints for Aadhaar, it gets stored in Aadhaar. This is an invasion of the right to privacy. Dwivedi said that any system which involves biometrics will require storage of biometrics- either at a single point or multiple ones.

The CJI said that minimal intrusion with legitimate interests has to be ensured.

Dwivedi said that providing services and benefits is to ensure dignity and liberty of individuals. This is a legitimate interest. He read relevant articles from UDHR and excerpts from Kesavanand Bharathi v. State of Kerala on dignity and human rights.

Dwivedi then read the NALSA judgment. He said that positive obligation lies with the State to ensure the dignity of the citizens.

Dwivedi referred to German cases which specifically say that minimum conditions have to be provided to ensure the basic human rights.

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The Court rose for the day. To resume at 11:30am on the 19th April 2018.

Summary of hearing based on tweets by Prasanna S, Gautam Bhatia and SFLC.

Written By

Vidyut is a commentator on socio-political issues with a keen interest in behavioral sciences, digital rights and security and manages to engage her various proficiencies to bring an unusual perspective to issues related with the intersection of tech and people.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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