Thread by @prasanna_s

Thread. The #Aadhaar hearing before a CB of 5 judges. Commences.

Before Shyam Divan can begin, A-G submits that this is a matter where there are many counsel on both sides and that there should be a time allotment.

Shyam Divan says we could give that broad estimate only after the next week.

A-G submits that there is the Babri Masjid matter in the first week of February.

SD: The matter is very expansive. Challenges the project and the programme with all its aspects from 28th Jan 2009, the 2016 Act, other enactments such as I-T Act and PMLA Rules and other circulars, notifications, schemes etc.

SD hands in his opening statement.

SD: The case at hand is unique. In part, this is because the programme
challenged here is itself without precedent. No democratic society
has adopted a programme that is similar in its command and sweep.
There are few judicial precedents to guide us.

SD:The closest foreign
cases have all been decided in favour of the citizen, repelling the
invasive programme by the State.

SD:The petitioners are certain that if the Aadhaar Act and programme
is allowed to operate unimpeded it will hollow out the Constitution,
particularly the great rights and liberties it assures to citizens. A
People’s Constitution will transform into a State Constitution.

SD:At its core, Aadhaar alters the relationship between the citizen and
the State. It diminishes the status of the citizen. Rights freely
exercised, liberties freely enjoyed, entitlements granted by the
Constitution and laws are all made conditional on a
compulsory barter

SD:The State is empowered with a ‘switch’ by which it can cause the
civil death of an individual. Where every basic facility is linked to
Aadhaar and one cannot live in society without an Aadhaar
number, the switching off of Aadhaar completely destroys the
individual.

SD enlists some of the issues that arise in the petition. (I shall give the link to the opening statement shortly).

SD reads out the list of dates. Reading the January 2009 notification. Highlights how 2009 regulated Aadhaar till 2016 came into force and that there is no mention of biometrics in the notification.

(Link to opening statement: drive.google.com/a/advocatepras… )

SD Reads the different orders of the Court 23.09.2013, 24.03.2014, 16.03.2015 orders.

Also reads the operative part of the 11th aug 2015 order that referred the matter to CB. And all the four interim directions restraining the use of Aadhaar to merely 2 schemes.

Now reads the full order of the Constitution Bench dated 15.10.2015 that largely continued the restraint and ordered that all orders of the Court has to be strictly voluntary till the matters are finally decided.

SD emphasises that this order still stands and has neither been recalled nor varied.

SD proceeds to read other list of dates including the Bill passage as Money Bill, the challenges filed against the Act, the notifications of Act coming into force, Section 7 notifications, 139AA of I-T Act, Lokniti order and the PMLA notifications.

At this point SD points out to the Bench as to how despite the protection granted to non-Aadhaar holders in the Binoy Viswam judgment, the department modified its income tax return upload forms to make Aadhaar effectively mandatory despite the judgment of SC!

SD proceeds to trace the history of 9 judge bench judgment and the December order extending deadlines.

SD hands over the volume 1 of the six volumes of documents he has prepared.

SD broadly the practical problems of exclusion just before he starts to read profiles of petitioners.

Explains as to why @BezwadaWilson is here as a petitioner and his track record and his work for emancipation of manual scavengers and how the SKA had worked for shedding a particular identity and his understanding of privacy dignity and equality.

Goes back to the exclusion issue and explains how as on date 6.23 crore people have just been denied enrolment because of biometric dedup even as they expected only 1000 or so such rejections.

Reads the profiles of @sgvombatkere and @BezwadaWilson ...

Reads the profile of Shantha Sinha. So far - 1 ex-serviceman and 2 Magsaysay award winners.

Reads the profile of Dr. Kalyani Menon Sen and the long list of her publications and work.

SD proceeds to read the profile of Aruna Roy. CJI whispers something to Sikri J.

SD reads the profile of @nikhilmkss and the work of MKSS and RTI movement.

...and the MGNREGA ...

Then reads the profile of Major General Sudhir Jatar who is also a petitioner as part of the Nagrik Chetana Manch.

Reads the profile of Col. Mathew Thomas - @mathew111938 ... his background in Engineering and other credentials and his service in the army.

(I will add a link to the petitioner profiles shortly. Also includes eminent people who have given affidavits in the matter)

Proceeds to explain the different aspects of the project. Begins with Biometrics. Distinguishes determinstic procedures and non-deterministic probabilistic procedures and how a biometric match algorith is inherently probabilistic, treating it as a deterministic one...

....is causing widespread exclusion all across the country where people are unable to access basic services. And how authentication failures report are unacceptably high.

Reads the different actors in the enrolment process. Registrar, Enrolment Agencies, Enrolment operators etc.

Petitioner profiles here: drive.google.com/a/advocatepras… Court rose 10 mins early today. Twitter trouble. Arguments to resume at 1430 hrs.

Arguments resume. Shyam Divan cotinues. Starts reading the 28.jan.2009 notification.

Justice Chandrachud interjects saying it is not particularly labour intensive...commenting on only 115 posts having been sanctioned.

SD says it is an important point insofar as all of the information is collected by private parties with absolutely no governmental control.

Reads the scope and functions of UIDAI.

DYCJ notices that there is no sanction for collecting biometrics. He asks SD if it is his contention that all info collected between 2009 and 2016 is unlawful.

SD says we want to go slowly and that is far ahead.

SD says he has to emphasise the broader point and that both the concept and implementation have no lawful sanction.

Ashok Bhushan says the point in the notification talking about generation and assignment of uid is wide enough to cover biometrics.

Sikri J asks if they have to destroy all data between 2009 and 2016. SD says he will come to the final relief much later.

There is a discussion between DYCJ , Sikri J and SD on the way authentication happens. SD says we are far ahead but his short point is that there is an electronic trail of every authentication txn. And that when these txns are built up ovrr time...

...a full profile can be built. Sikri J wants to know how is it different from giving up biometrics for US Visa. Shyam says no one is building up a profile as it is in the case.

Twitter troubles. Internet troubles. Had to miss tweeting an eventful exchange between DYC J, CJI and Shyam Divan. DYCJ wants an answer to the counterveilling state interest point.

SD now showing how 2016 Act is almost identical to the 2010 Act.

Shyam Divan proceeds to read the 2011 standing committee report.

Reads Justice Rama jois and Prof. Rama Kumar's submission to Standing Committee.

Takes the Court through the various pages in the standing committee report pointing out: no feasibility study; technical architecture being merely assumptive;

Shyam Divan emphasises the false positives in deduplication how 6.23 crore people have been rejected at the threshold even being unable to enrol.

Reads out Standing Committee finding that executive operation of aadhaar scheme even as NIDAI bill was pending before parliament was unethical and unconstitutional.

Emphasises SC observations on how UK junked its Biometric Identity cards project.

CJI says this SC is on NIDAI 2010 Bill. Asks if 2016 Bill was sent to Standing C. Shyam smilingly says it wasn't and that is the whole point.

CJI says he has given an earlier judgment that the question of money bill cannot be agitated.

Seniors P Chidambaram and Datar get up to

...show him how that is contradictory to two previous CB judgments in Khihoto Hollohan and Raja Rampal.

SD finally emphasises Standing Committee finding that NIDAI Bill should be rejected.

SD points out the notifications establishing UIDAI post the 2016 Act. The Court rises for the day.