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Constitutional Validity of Aadhaar, Day 34: “Why should we not be entitled to use it?”

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, Day 29, Day , Day 31, Day 32 and Day 33.

Senior Advocate Gopal Sankaranarayanan, continued his arguments on behalf of Center for Civil Society.

Justice Chandrachud began by interjecting to say that Section 7 of the Aadhaar Act seeks to identity the beneficiaries that require subsidies. It doesn’t take away other forms of identity.

Sankaranarayanan said that Aadhaar is a number which helps identify people who need subsidies. Many don’t need that identity. He said that he supported Aadhaar because of the control, security and safeguards it provides and pillars on which the Act stands, but 139AA of the Income Tax Act takes away those.

Sankaranarayanan quoted Madhu Kishwar with regard to identity. He then read Justice Kaul’s opinion in Puttaswamy.

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Sankaranarayanan said Aadhaar has none of the dangers and jokingly quoted the link in Dwivedi’s profile as outed recently on Twitter about his cricket career. He joked how no-one could find if Dwivedi was a batsman or a bowler. He stated he was an opening batsman.

The CJI asked Sankaranarayanan if there is no mass surveillance through Aadhaar.

Sankaranarayanan concurred and said there is no mass surveillance because of Aadhaar. The privacy concerns are valid, he said, but the Act passes all the tests laid down. He said Aadhaar Act makes Aadhaar number a pure entitlement and does not make it mandatory. He read the statement of objects and reasons of the Aadhaar act and said “identification of targeted beneficiaries” is key. He said Aadhaar is voluntary.

Sankaranarayanan said Section 4 clearly said Aadhaar can be used as proof of identity and does not say that it shall only be for purposes of this Act. Section 57 is therefore not really required. He said Section 5 enjoins UIDAI to take special measures for vulnerable groups. It shows there is an element of discharge of obligation by the State.

Section 7 is also a beneficial provision Sankaranarayanan said. Even if someone does not have Aadhaar, the obligation is on the state to identify, because right to identity is a 21 right, which is why Section 7 is worded in the way it is. Recognition of identity of every person is an international obligation. He cited multiple European and US cases on right to identity. He cited a European judgment that upheld a Dutch couple’s right to change the surname eventhough it was disallowed in the Netherlands.

Justice Chandrachud asked Sankaranarayanan to counter the Petitioners’ contention that making Aadhaar as the only identification mechanism is being mandatory.

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Sankaranarayanan replied that the answer is in Article 266 (3) of the Constitution. He said it has to be in accorance with law. The Government will have to discharge that onerous obligation to secure public funds and that is why Section 7 is reasonable.

Sankaranarayanan said The Constitution lays down that any penny from the Consolidated Fund of India has to go to the person for whom it was earmarked. It is an onerous obligation on the state. Aadhaar attempts to ensure, with the use of biometric authentication, that this obligation is dispersed.

However, Sankaranarayanan said that the government argument on trying to argue that Section 7 is in furtherance of Fundamental Rights is a flawed argument on many counts. He said that once you are already identifying beneficiaries under laws, there is no question of Fundamental Rights. It is only a directive principle.

Justice Chandrachudremarked “right to nutrition”.

Sankaranarayanan said it is only a negative right in the sense, you can file a 32 petition asking the Government to not interfere with your right to nutrition, but cannot file a 32 petition asking to be fed.

Justice Chandrachud said that there is also a positive aspect in the sense, it confers reasonableness on State action in furtherance of such a right. It creates a judicial restraint to that extent. Sankaranarayanan agreed.

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Sankaranarayanan said that his next point was his concern on Aadhaar becoming the universal idenification and all other Proof of Identity documents becoming irrelevant. He showed the enrollment form and the Disclosure provision in the end. If Aadhaar becomes the universal identity card replacing all other identity docs which were initially required to get an aadhaar, then it is a concern.

Sankaranarayanan said that allowing 18 POIs and make it available for all residents makes the absolutely foolproof identification claim of the government doubtful. That needs to be kept in mind while deciding proportionality. Aadhaar is also only as secure as any of the 18 POIs.

Sankaranarayanan said Aadhaar Act has that balance because of the limited purpose in Section 7. But 139AA of IT Act does not have the balancing. He stressed how mandatory Aadhaar for purposes other than Section 7 is manifestly arbitrary. He claimed that because of the voluntary nature of section 7, there is balance in Aadhaar Act, unlike Section 139aa wherein there’s no balance.

Justice Chandrachud said that section 7 is not voluntary. Someone who wants subsidies will have to have Aadhaar.

Sankaranarayanan said this limitation of purpose is important right at the threshold at the time of enrollment. He understood that prior to the Act, the enrolments may be on problematic ground, but he suggested that the Court take a pragmatic view of it given public money has been spent etc.

Sankaranarayanan said the balance in Aadhaar Act and it makes it reasonable and proportionate only if Aadhaar remains voluntary for purposes other than Section 7. He said Aadhaar act subserves articles 253 and 266(3) of the Constitution along with fundamental rights. He reiterated Directive Principles of State Policy and how the fundamental obligation is on the state and that gives the balance for Section 7.

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Sankaranarayanan read out the proportionality test followed in UK. He said we don’t need the least restrictive test to show proportionality because proportionality deals only with balancing. He said he trusts the CIDR with his data. He said embedded cards are less secure than CIDR because people could misplace the cards. So it is reasonable for any given person to choose to entrust CIDR rather than oneself.

Sankaranarayanan said Security is an object of the Aadhaar Act. That and legal safeguards and creation of offences are good balancing factors for proportionality. However challenges Section 47 which falls foul of natural justice. He reiterated that Aadhaar Act is in furtherance of Directive Principles of State Policy but not Section 139AA of the Income Tax Act. So 139AA has to go.

Sankaranarayanan said that there has been hubris by authority in their security levels etc. One is not entirely sure. Even encryption level of 2048 bit assymetric key is not the best in class. He showed authentication history of CEO UIDAI and pointed out how Dr. Pandey does not trust biometrics and has locked his biometrics.

Senior Advocate Rakesh Dwivedi clarified that Dr. Pandey had only been testing.

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

Senior Advocate Rakesh Dwivedi objected to Gopal Sankaranarayanan arguing against 139AA given his IA not being issued notice etc.

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The Bench overruled that objection and gave Sankaranarayanan 20 minutes to argue.

Sankaranarayanan mentioned National Informatics Centre that runs both Supreme court website and UIDAI. He said Supreme Court website was hacked a few days ago. He stressed that the Government has to flush out the big holes in terms of security and exclusion and authentication failures before rushing everybody into the system. He said Aadhaar is not being able to keep up with technology.

Sankaranarayanan said that safeguards under Aadhaar Act are in addition to Section 43A and reasonable security practices Rules under IT Act. If IT Rules under IT Act apply, then informed consent is required when Aadhaar is used for purposes outside the Aadhaar Act in addition to an option to opt out.

Sankaranarayanan said that Aadhaar has protection under the Aadhaar Act and section 43A of the IT Act, along with SPDI rules.

Sankaranarayanan next addressed the interpretation of Section 57. Because Section 8 applies, informed consent is a necessary precondition therefore no question of mandatoriness in 57.

Sankaranarayanan then challenged Section 8 (4) where “any other appropriate response sharing identity information” is provided. He said this is a privacy violation that has no counterbalancing state interest. Even address may be a private matter. Why should that be given to a KUA.

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He highlighted three problems with the Act:

  1. Section 47, 34,35 , 37, 50
  2. Section 8(4) allows sharing of identity information for the purpose of e-KYC. said address is as equally important as biometrics. Authentication should be restricted to yes/no
  3. Section 29(2) conflicts with section 12 of RTI Act.

Sankaranarayanan argued that Section 29 violates RTI Act.

Sankaranarayanan, on the point of section 139aa said that “Individual Income tax pan holders (non corporates)” are targeted by the State via Aadhaar. With respect to financial scams, the problem was dummy companies, not individuals. Yet companies are not targeted. For the purposes of Income tax, Aadhaar is mandatory, there’s no informed consent, and it is not related to Consolidated Fund of India. Therefore proportionality test fails.

Sankaranarayanan said that if the aim was curbing black money and preventing money laundering, then linking pan with individual Aadhaar holders doesn’t achieve that purpose. Therefore there’s no proportionality.

His challenge to Section 139AA was on multiple grounds. Among other points that he quickly ran through, he said the data is with the government and government has to discharge the burden of reasonableness by showing that data. He said Indian law journal’s users guide to privacy said Obfuscation is a technique by which privacy can be kept intact. It gives up on trust between individual and states though. Petitioners have a valid ground of lack of trust.

Sankaranarayanan concluded saying that there have been a number of incidents that cause a trust deficit between the State and petitioners and the grounds are all valid grounds.

Senior Advocate Neeraj Kishan Kaul, began his arguments on behalf of Digital Lenders Association and other businesses who claim that they have built businesses around Aadhaar. He said that if Aadhaar is a reliable, speedy tool for identification and authentication, then there’s no reason to hold it invalid. He argued that free flow of information is necessary.

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Kaul claimed that Aadhaar authentication has made life easier for women in villages, migrants, etc. Microfinance institutions will have a larger reach by virtue of Aadhaar and predatory financing will reduce.

Justice Chandrachud asked Kaul of Section 57 and the compelling state interest or compelling public interest.

Kaul said he only wants Section 57 to be voluntary by consensus. He said that private players are also governed by the Act. He pleaded that private players be given the choice to use Aadhaar if they want since section 57 is an enabling provision under the Aadhaar Act.

Justice Chandrachud remarked that the need for verification should not be decided by private players. He asked why they need Aadhaar’s central authentication.

Kaul said the Bench can make Privacy and data security regulations as stringent as possible, but as long as the private player and customer have consensus on using Aadhaar, it shouldn’t be disallowed as Aadhaar is the most effective and powerful tool for verification. He argued that Aadhaar already exists. An effective way and a cost effective way. “Why should we not be entitled to use it?”

Justice Bhushan asked Kaul who is stopping them now.

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Kaul said that they want to make sure they are heard before the Bench makes observations on 57. He said the central info in Aadhaar is very minimal.

Kaul said that Aadhaar very different from Cambridge Analytica. Statutory control. No learning algorithms etc. He said that Aadhaar is based on matching algorithms, not learning ones like Google and Facebook. He said that all that they want to say is that if there is a powerful tool of identification, the private sector must be allowed to use it.

Kaul said that the information that comes in ekyc is actually collectible even before Aadhaar. The problem is unauthorised sharing, which is a problem even outside Aadhaar, and thus, there was no reason to strike down 57. He said that now Virtual ID will be even better so no KUA or AUA stores the Aadhaar numbers. (MediaNama: eyeroll)

Kaul requested the Bench to not exclude AUAs and KUAs from using Aadhaar for their businesses. He said that merely because there’s a scope of misuse, a statute cannot be struck down. He said that a speculative possibility of identity theft will not defeat the statute.

Kaul said that the location of AUA or KUA is never shared with UIDAI. So the question of surveillance does not arise.

Advocate Zoheb Hossain started his submissions for UIDAI and the State of Maharashtra. He said that thinking has now developed that economic and social rights are enforceable. He cited Amartya Sen’s capabilities approach and Martha Nassbaum. He talked about the balancing approach again. All Article 21 rights have to be enforced, he said.

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Hossain argued that socio-economic rights are justiciable rights, as the Supreme Court has held in the past. He said that the Article 56 of UN charter talks about inter-relation between socio-economic and civil-political rights. Positive obligations of the State like food, shelter etc are embedded in Article 21 of the Constitution, he said.

Hossain canvassed a weight theory in balancing proportionality. In this case he saw it as not balancing privacy and other rights, but interference of privacy with all other rights.

Hossain read Maslow’s hierarchy of needs. He argued that in this case, the bench is balancing interference with the right to Privacy which is the numerator and denominator is the socio economic rights of the people. It is not just a case where part IV requirements are being read.

Hossain argued that Aadhaar is the infrastructure that helps progressively achieve positive duties of the State under article 21. He read from Sandy Fredman article on positive duties emanating from economic social rights. (Union of India invoking Professor Sandy Fredman to defend Aadhaar. Almost like invoking Jean Dreze, which they have also done. – comment from Gautam Bhatia, who was live tweeting the case)

The Court rose for the day. The next hearing is at 11:30am on the 2nd May 2018.

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

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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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