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Constitutional Validity of Aadhaar, Day 36: Rejoinders begin

This is a record of the proceedings in the Supreme Court 5 judge bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the entire series here. Previous post in this series may be found here.

Attorney General K.K Venugopal commenced his submissions. He repeated that Article 110(1)(g) is a standalone provision. There can be a bill that does not relate to 110(1)(a)-(g) but is still covered independently under 110(1)(g), Therefore the Aadhaar bill did not have to be passed by the Rajya Sabha, which could only make recommendations.

The CJI said that Section 57 is an enabling provision that allows state legislature to introduce Aadhaar for various services. The state legislature may or may not introduce it as a money bill. It’s nature will then be examined if it’s challenged in a court of law.

The AG cited Articles 122 ( Courts not to inquire into proceedings of the Parliament) and 255 of the Constitution in support of his money bill argument.

The AG cited the cases of Mohd. Saeed Siddiqui v. State of Uttar Pradesh and Yogendra Kumar Jaiswal v. State of Bihar. He read chapter V of the Aadhaar Act ( Grants, accounts, audits and annual report ).

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The AG then read the Lokniti order and the Bench’s recital of the Union government affidavit in that order. He said currently Aadhaar is not mandatory to obtain a new connection, but there will be no chance of forgery and fraud if Aadhaar is linked to SIM card.

The AG said Aadhaar was made optional as per the direction of the Supreme Court (Supreme Court had denied a few days ago that it had issued any direction to make Aadhaar mandatory for sim in the lokniti case), but it will only remain optional till the final disposal of the matter. He said they are recognizing the interim order passed in the Lokniti foundation case, and hence making Aadhaar optional for the time being.

Justice Chandrachud asked how the linking is relatable to Section 7.

Justice Sikri pointed out that petitioners wanted something and government agreed, so where was the question of a direction.

The AG replied “Your Lordships judgment….what more?” The AG then read the interim orders which stated that “As held in Lokniti…”

The CJI and Justice Sikri did not seem to agree.

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The AG then moved to the next argument – that surveillance is prohibited and the Court cannot proceed on the basis that a violation will take place and surveillance is possible. He reiterated that no core biometrics data is shared under the Aadhaar Act. He read out the offences and penalties laid down under the Aadhaar Act. On the point of surveillance, the AG said we cannot accuse a democratic govt of such conspiracy.

The AG concluded by taking objection to phrases like concentration camp, electronic leash, totalitarian state etc.

This concluded the Union of India’s defense of Aadhaar.

The Bench rose for lunch, reassembled at 2:30

The Petitioners began their rejoinders.

Senior Advocate, Shyam Divan begins his submissions. Divan said that for first time in a democracy, something like the CIDR has been implemented. The Supreme Court is at the vanguard of balancing human rights and complex issues of technology and rights. The Supreme Court will lay down the law for generations.

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Divan said he wanted to reiterate many agreements between Petitioners and Respondents.

  1. This an immensely large project.
  2. First such attempt in a democracy.
  3. Surveillance is unconstitutional. (Although Respondents disagree that Aadhaar creates a surveillance state).

Divan said the AG concluded the case by talking about surveillance, so he was beginning by talking about surveillance. When they argued back in January, they had set out expert evidence and pleadings on surveillance, which were not at that time countered by the government. After he ended his arguments, on the 9th of March, the Union filed an affidavit on 9th March. In that affidavit, the Union has appended an expert report by Mr Manindra Agarwal from IIT. He refreshed memory by citing Samir Kelekar and J T Dsouza affidavits and showed how Union filed an affidavit by Prof. Manindra Agarwal as late as 9th March. He wanted to read that affidavit first.

Divan said that the CEO of UIDAI had talked glowingly about Prof. Manindra Agarwal, a Godel prize winner. He said the report is dated 4th of March. Also, the CEO of UIDAI filed supporting documents.

Divan said we cannot have a surveillance state in this democracy. Identity of the person, date and time, and location are the three elements of surveillance. On identity and date and time, both sides agree that it is tracked. The disagreement is on the question of location. He took out the UIDAI CEO’s power point presentation, and went to pages 21 and 22.

Divan pointed to the name of Manindra Agarwal on the technology and architecture board as well as the security committee of Aadhaar. Divan said that this gentleman (Agarwal) is therefore clearly very well versed in the ecology of Aadhaar.

Divan goes to the expert report, dated 4th March 2018. Divan said The Report said that the biometric database is accessible to third party vendors such as Morpho, L1, Accenture etc. He pointed out that this has now been expressly conceded.

Divan now goes to page 14 of the Report, which is about the verification log, and said that leakage of the verification log can lead to forged identities and revealing of location.

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Divan said It also said that breach of verification log results in leakage of location data – that is, location of the places where the transactions were carried out.

Divan said UIDAI’s presentation report said that biometrics database is accessible by third party vendors like Morpho, Accenture, identity solutions and one more. Breach of verification log leaks location of places where an individual did authentication. He saw that as an express admission that tracking of current location is also possible. He said this indicates that location is indeed ascertainable from the verification log, and UIDAI has access to it.

Divan said Surveillance is complete once identity, date and time and location are collected regularly. Divan wants to read the report by Prof. Manindra Agarwal.

Justice Chandrachud asked Divan to read the previous para. The previous para said that the databases must be kept secure, and that other databases can be broken with the same effort.

He emphasized how it clearly admits that tracking of location of a person is possible.

Divan said the takeaways are:

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  1. From the verification logs, you can trace location.
  2. Even without the verification logs, current location can be tracked.
  3. UIDAI knows the location. A third party, to know it, they will have to breach the log.
  4. Breach the log will yield approximate location over five years.

Divan said he did not have the advantage of the report when he argued, but he would address it now. The Report admits the inconvenient truth, and the Union of India has very honourably placed it before the Court.

Divan said that now they have three experts on both sides who agree that real time location tracking is possible, and there are verification logs for five years. It is now for the Court to decide if this is constitutionally permitted.

Justice Chandrachud said that perhaps Mr. Agrwal was trying to suggest there is a limitation on privacy anyway in a digital age. Divan said his point is that of a limited government issue. How far does the coercive power of state extend?

Divan said that it is not as if darkness will descend immediately if the program is allowed. The issue is that if you have this kind of location tracked across a person’s lifetime, it creates a chilling effect that is completely destructive of freedom in its classical sense.

Divan asked if we have a law or system that sets up an authority that does not comport with our democracy. He said he was speaking about a rudimentary level of surveillance. He was not even talking about commercial surveillance.

Divan said this was not about sophisticated commercial surveillance through big data. This is much more basic – name, date and time, location, for everyone and all the time.

Divan then went to Slide 14 of CEO of UIDAI’s presentation. He said the presentation said that every registered biometric device will have traceability. He emphasized traceability. He said kelekar, Dsouza, Agrawal and Pandey all agree how there is full traceability in all authentication transactions. He said that this is to prevent fraud. But what it means is that you have an electronic trail, that goes back to each device.

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Divan reminded the Court of the screenshots of the Kerala Dairy Board, that was tracking location. Divan said that this is one among tens of thousands of entities who will have access to such databases. There are proliferating databases with these details. He said that this is not about the CIDR, but at the levels of the AUA and ASA. Over a lifetime, imagine the chilling effect this has on people’s conduct.

Divan said on 25th April 2018 at 12:37 PM, Mr Dwivedi made the argument that the UIDAI and the CIDR is separate and autonomous, so unless there is collusion, you won’t have surveillance. But that’s not the point – the point is that the State can’t empower an instrumentality which has this much power and control. There’s no Chinese Wall between the UIDAI and the State.

Divan said the State has created a structure of not just CIDR but AUAs and KUAs where all information is being tracked including location. In terms of power and control, the existence of a body like UIDAI is beyond my wildest imagination.

Divan said that the submission by Mr. Dwivedi that UIDAI is autonomous and will not give access to the government is immaterial. No state instrumentality can establish such a mass surveillance regime.

Divan said the question is, therefore, how do we approach this architecture and design? After the three experts, the issue is clear. The design of the entire program, architecturally and technologically, is fundamentally flawed.

Divan said Aadhaar may be technologically brilliant but it is Constitutionally impermissible. Part III (of the Indian Constitution) rights are too valuable to be sacrificed in this fashion. He hoped in 2018 the Supreme Court of India would not usher in a surveillance technology, irrespective of its technical brilliance. Part 3 rights are far too valuable to be subjected to that.

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Divan said that the Maninder Agarwal affidavit is a tipping point in this case. He’s careful and he has said that there are laws to protect us. The question however was whether you are allowed to set up such an ecology in the first place.

Divan concluded his rejoinders on surveillance saying this reminded him of the story of the Emperor’s New Clothes. It took a clear-eyed child to discover that the Emperor had no clothes.

Divan now came to the issue of balancing rights. He said that like the Rubicon, there are certain rivers which, once you cross, you tip over into a very different situation. He said If the Court agreed that Aadhaar is an engine for surveillance, then there was no question of balancing. The Constitution expressly rejects it. This is a moment in time to take a firm stance.

Divan said that in the Koodankulam case where it was a technology they had tested for 60 years and also had been applied elsewhere. The dangers here are far greater in terms of impairment to freedom and chilling effect.

Justice Chandrachud said that the march towards technology is inexorable. No court or government can stop it. He added that the human rights perspective is not only about privacy but also about providing benefits to segment of society that could not access them earlier.

Justice Chandrachud said that these are the two issues the Court has to consider when balancing. And also, what safeguards the Court has to consider when balancing.

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Divan responded that this is not a case where a person who wasn’t receiving benefits earlier is receiving benefits now. The government’s case is that there is a saving in welfare benefits.

Justice Sikri said that the government’s case is that through those savings, you can then reach people who need it.

Justice Chandrachud said that it is not like there’s quantitative lack of food in our country. The problem is that people can’t access that food. It is the duty of the State to look into this aspect also.

Justice Chandrachud and Justice Sikri ask about the balancing of rights vis-a-vis other rights such as right to food. Justice Chandrachud referred to Advocate Zoheb Hossain’s submissions on positive obligations of the state and said that is indeed the heart of the matter.

Divan said that there are two answers. The first is choice and options. Choice and options are part of democracy. They are important. They promote inclusion. He pleaded that the people be given a choice.

Divan said that the second answer is that yes, you can’t stop technology, but you always have choices in how and which technology to deploy. For example, you can have local databases instead of a centralised one.

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There was a light discussion between CJI and Divan on how Divan filed returns without Aadhaar. Divan said he just did it before the deadline so he could. Divan joked that Mr. Zoheb Hossain also did not have an Aadhaar till the previous week.

Divan came to his next point, which was on the questions that were put by the Petitioners to the UIDAI.

Divan then went to answers provided by the CEO to questions. He pointed to how they are all yes/no questions he asked and yet long winded answers had been given. He said that when reading the questions, just put a “Y” for “Yes” next to each question. Their questions were framed in that way, and effectively, every answer is a yes.

Divan said Q1 was to confirm that no UIDAI official verifies at the stage of enrolment. He read out the answer. Q4 is to confirm that UIDAI takes no responsibility for correct identification of a person. He read out the answer. He said The ID number is being issued without verification by UIDAI. They don’t even know whether the documents presented to the enrollers are genuine or false. And they take no responsibility for it. He said Aadhaar is essentially a self-declaration system of verification. Nobody in government has verified, and they have candidly admitted it.

Divan said UIDAI in their answer have said that they do not take responsibility for correct/incorrect identification. They only provide a matching system. It’s a self certification/ declaration system. Divan said Court will have to consider the implications for opening a bank account, passports.

Divan said that the government’s claims on using Aadhaar to stop terrorism ring was hollow in light of this. He said that this is a deep flaw in how the system works.

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Divan said their question 3 is that Aadhaar does not identify a person, it only matches. The answer to that is yes. Also, UIDAI does not verify age, date of birth etc. That is only derived from the information fed in when enrolled. He asked the Court to consider if this meets minimum standard of rationality.

Divan said their next question was to confirm that the process is probabilistic. We asked for numbers pertaining to rejections. They haven’t answered that specific question. But if one person succeeds once in six times, they count it as a 100% success. He said UIDAI hasn’t answered how many authentication rejections have taken place. If you’re successful of performing five authentications in a year, it’s considered hundred percent successful.

Divan referred to multiple questions on UIDAI being reliant on loose sources.

Divan said next, they had asked them to confirm that biometrics become increasingly unreliable with age. That’s been admitted. We asked them about the 49000 cancellations of operators. They’ve given a generic answer about quality control.

Divan then points to the question on whether there is verification if the person is an illegal immigrant. He clarified that he referred to it only because there was an order by this Court on 23.09.2013, specifically stating that Aadhaar should not be given to illegal immigrants. They have said that there is no verification. This is blatant disobedience of the SC order. They were very quick to issue circulars for linking, did they issue any circular on this? UIDAI took no steps to comply with the orders of the Court for all their claims in the morning about the greatness of Court orders. (Also asked if the Court had been following the background check on Lokniti foundation news reports. Justice Chandrachud smiled)

Divan said their next question was whether the machines are equipped to store biometrics.

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The Court rose for the day. The next hearing is at 11:30am on the 8th May 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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