Aadhaar bench assembles.
Shyam Divan to start.
The AG proposes that time be allocated to each side. Shyam Divan says that the issue is extremely complex.
Shyam Divan says that the first challenge is to the Aadhaar project. "We will set out before you what the Aadhaar project is all about."
SD: The next issue is the Aadhaar Act, which seeks to ratify the Aadhaar programme. They statute is under challenge.
SD: The statute covers part of the project, but not all of it. So the two issues are separate. Then there is the issue of subordinate legislation, collateral laws, and various declarations.
Shyam Divan says that he will begin by giving a broad flavour of the case.
SD: No democratic society has engaged in a program of such scope and scale.
SD: There are very few precedents to guide us. Cases from other countries favour us.
SD: The petitioners submit that if the Aadhaar programme is allowed to continue unimpeded, it will hollow out the Constitution.
SD: Through a succession of marketing strategies and smoke and mirrors, the government had rolled out a program designed to tether every citizen to an electronic leash.
SD: As the Aadhaar programme expands, the extent of profiling will expand.
SD: At its core, Aadhaar inverts the relationship between the citizen and the State.
SD: Inalienable and natural rights have been made dependent upon compulsorily acqiring an Aadhaar number.
SD: Does the Constitution allow the State to have so much power?
SD: The Constitution is not a charter of servitude.
SD: Does the Constitution of India allow a program where every transaction is recorded?
SD: Does the right to privacy allow a citizen to protect her personal identity without giving up personal information to the State, as long as she chooses to identify herself in a reasonable manner?
Shyam Divan lays out the scope of the constitutional challenge.
SD: Petitioners seek a declaration regarding the physical autonomy of the individual, as against the State.
SD: Petitioners ask, in the alternative, for the right to opt out and have their data destroyed.
SD: If the Aadhaar Act is upheld, then in the alternative, no citizen should be deprived of any right or benefit for the lack of an Aadhaar card.
SD takes the Court through the list of dates.
SD starts with the notification of 2009 that established the UIDAI.
SD: For seven years, till 2016, we were functioning only under an administrative direction. There were no checks and balances.
SD: The program was launched in September 2010 in Maharashtra.
SD: A bill was introduced in Parliament in December 2010. This was very similar to what finally became the Aadhaar Act.
SD: The bill was referred to the Standing Committee on Finance. Lacunas were pointed out pertaining to privacy, security, private players.
SD: In 2012, many citizens filed PILs against the Aadhaar scheme. In 2013, a two judge bench referred the matter for final hearing, and made it clear that nobody should suffer from lack of an Aadhaar card.
SD: In 2014, UIDAI itself filed a petition against a Bombay HC order that had directed it to disclose biometrics in a criminal case.
SD: The interim order making Aadhaar voluntary was sustained through multiple hearings.
SD: On 15th October 2015, the use of the scheme was partially extended.
Shyam Divan tells the Court about the Aadhaar Act, which was passed in 2016. In January 2017, notifications were passed making Aadhaar mandatory for multiple services.
Shyam Divan tells the Court about the amendments to the Income Tax Act, and the requirement of phone linking.
Shyam Divan: Aadhaar has been made mandatory for opening bank accounts, holding insurance policies, making transactions, mutual funds.
SD: Effectively today, you cannot live as a citizen of India without an Aadhaar.
SD: The petitioners before you are people who work in the field. They work in rural India and study rural India. They have found that Aadhaar is operating as a system of exclusion.
SD: People may not be able to come to enrolment centers. A large number of people do manual work. Their biometrics are not registered.
SD: People are not in a position to leave home and go be authenticated and receive rations.
SD: Sometimes you have to give the fingerprints twice or thrice. The person giving his fingerprints is not in a position to know whether or the first try, it's worked, if the account has been debited.
SD: There are petitioners who work with children and schools. Far before attaining the age of consent you are forced to register. For example, for attendance.
SD: The third set of petitioners are former military personnel. They are raising concerns of national security.
SD: These petitioners are people who understand what they are talking about. For example, one of the petitioners is Bezwada Wilson, who works with manual scavengers. He truly knows what Article 14 means.
SD: I'm pointing this out because in the privacy hearing, the State said that these are all elitist concerns. They are not. There are genuine, weighty issues.
SD takes the Court through the work and the qualifications of the petitioners, such as Sudhir Vombatkere (35 years in uniform), Bezwada Wilson (founder of Safai Karmachari Angolan)...
... Shanta Sinha (headed the national commission for the protection of child rights), Dr Kalyani Sen (worked with migrant women and women farmers), Aruna Roy (former IAS, who resigned to work with the rural poor in Rajasthan, founder of MKSS)...
... Nikhil Dey (worker with the MKSS), Colonel Mathew Thomas (active service with the Indian army), Justice Puttaswamy (former judge of the Karnataka HC)...
From the standpoint of exclusion, Reetika Khera and Jean Dreze, who work on the ground, have filed affidavits.
SD: Anand Venkat, a sophisticated security expert, has filed an affidavit.
Shyam Divan starts by talking about the nature of deterministic identity systems.
SD: UIDAI doesn't do that. They have a probabilistic system.
SD: UIDAI captures all the ten fingerprints of the individual, a facial photograph, and the two irises.
SD: This data is stored.
SD: They have a template. The template scales the fingerprints. They then pick up, say, hundred distinctive points, called minutae. The UIDAI then sets a number - how many of those hundred points should match?
SD: If the number is set at 100/100, it will never work. So UIDAI has to make a value judgment. It can't be too high, it can't be too low.
SD: So you're departing from a deterministic system from a probabilistic system.
SD: The issue is this. If I have certain rights, then how can my enjoyment of those rights be made probabilistic?
SD: Where is the question of making something I am entitled to dependent upon probability?
SD shows the Court images of how fingerprints are taken.
SD takes the Court through the list of registrars and enrolling agencies.
Shyam Divan: Enrolment agencies are private agencies.
Shyam Divan takes the Court through the hierarchy of authorities under the Aadhaar programme.
SD: Enrolment agency sends the captured data to the UIDAI.
SD: For seven years, this operated without any legal framework.
Bench rises for lunch. To resume at 2 30. Cheers.
