Thread by @prasanna_s

Thread. Aadhaar hearing. Day 2. The Constitution Bench yet to re-assemble. A slight delay because the order still being pronounced by CJI in the Padmavati matter. Brb.

FYI - It sounds like all the ban orders against Padmavati have been stayed. Padmavati screening to go on unhindered. Also orders protection for all people in the film and involved in the process of exhibition.

Today's Aadhaar hearing starts on a good note with a 1-0 for civil liberties against state excess. (Sorry for the digression.)

The Bench just assembled. Shyam Divan, Senior advocate to resume arguments. P.Chidambaram and Kapil Sibal among senior counsel on the side for petitioners.

K Sibal mentions his petition for West Bengal challenging Aadhaar. That petition is ordered to be heard along with this.

SD: Clarifies a bit on the deterministic v probabalistic distinction he made yesterday with a couple of HD images. DYCJ agrees and cites the problem of fingerprints for manual labourers.

SD:Says the first challenge he wants to elaborate on today is the integrity of the process of UIDAI. Promises to go to the 9-judge bench judgment afterwards and then the specific provisions of the Act.

SD:Reads the enrolment form as it existed earlier.
There is nothing on the form that made it voluntary.
No mention of Biometrics.
No verification.
No signature of either the enroller or enrollee.
No counselling.

SD: No purpose for data collection mentioned. Says he also cites the other question that J DYC asked yesterday about the limited purpose. Says this programme by design is a general purpose database of identity data.

There is a discussion between DYC J and SD on the consent to share data. SD refers to an affidavit on record that says the software would not take no for an answer.

SD: Comes to the next point about delegating a core sovereign function, even assuming the state can do it, of collecting biometrics of all citizenry to private persons. He points out the absurdity of state compelling citizens to give all personal sensitive data to random players

SD refers to the recent @mail_today sting operation in NCR and the enrolment agencies selling data.

SD reads the next version of the form. Specifically refers to the "no objection for UIDAI to share data further" clause.

SD: Reads the absurd clause titled "Consent" but actually just a declaration by the enrollee that the information he has furnished is correct.

SD: Points out that Union has not come out with the answer as to how many said No for further sharing of information.

DYC J and Sikri J want to know how different it is from people giving their address proof etc to other pvt entities for insurance, credit card company etc.

DYC J brings up the case of @msdhoni card details having been leaked.

DYCJ also brings up the lack of coverage of Aadhaar in states like Meghalaya based on Eco Survey. SD says he shares the said concerns.

SD reads the affidavit of Nachiket and @anandankita saying how they were coerced into enrolling for Aadhaar. And how they were not allowed to withold consent for UIDAI sharing the data furthed.

Affidavit details how the then SC orders were violated with impunity by state authorities such as the SDM and the ADM.

SD then moves to explain the role of Registrars.

Before that he wants to make the point about introducers. As to how only 0.003% are enrolled through the introducer system making Aadhaar the first identity document for a tiny tiny % of the population.

SD now reads the list of enrollment agencies and how all manner of people are made enrolment agents.

Court rises for lunch.

Court has reassembled. SD continues. Sikri J tells SD that they don't need to go through the list of private enrollers and they get the point.

SD reads the statement of minister RS Prasad in Rajyasabha in April 2017 that 34000 enrolment operators had been blacklisted.

SD says the updated figure as on date is actually 49000 and cites a new report.

Justice Khanwilkar smiles and discusses something with the CJI.

SD invites attention to The Registrar handbook 2013.

(UIDAI CEO is not present in Court today. Possibly a first)

SD emphasises KYR+ and how Registrars were allowed freedom to collect information they wanted in addition to Aadhaar enrolment data.

SD emphasises the part of the Handbook where it says Registrars must retain biometrics. Also cites how UIDAI is taking a contrary statement on affidavit and in public statements of late that no biometrics are ever retained.

Then reads the qualification for verifier introducer operator etc.

SD reads out the MoU between Govt of NCT Delhi and UIDAI.

DYc J asks if Registrars are all govt agencies. SD clarifies that it includes govts but also other entities such as PSUs Banks Pvt Cos etc.

SD says the MoUs are no enforceable mechanism and not even an enforceable contract between competent parties...reads Article 299 of the Constitution.

No protection to citizen at all where absolutely no legal framework governs. No law. The notification does not even mention biometrics. All data is sucked up from the entire citizenry with absolutely no legal sanction or protection.

Khanwilkar J asks SD about Section 59 of the Aadhaar Act and the validation. Shyam D says he will address that point and S59 is under challenge in this case.

DYC J asks how the Registrars are paid. SD says he is coming to the point on funds flow.

SD reads the latest statement on the per-enrolment fee that agencies are paid. SD details the recent Kanpur case and the modus operandi there.

SD then moves to his illustration on surveillance and how this enables round the clock surveillance.

SD then shows his illustration on the cradle to grave ubiquity of Aadhaar from birth certificate to school to univ to etc etc and death certificate!

SD shows his chart on convergence and link of various databases to UID and what such homogenised access would entail.

SD reading paras from the 9 judge bench case. Explains that the question of privacy arose in this case.

SD reading paras of DYC J.(will post the exact para numbers shortly).

Paras (as in SCC) ... 23,24,27,32,34,35,38 (right to be let alone)

41 through 96 (privacy under article 21 and part 3)
Also inalienable rights under 120-121.

103 107 Rule of law.

International obligations.

Constitutional as a living instrument.

Privacy not an elitist construct.

And the test and legitimate state interest principle.

Emphasises how in the modern era, privacy is endangered not just the State but private cos. There is a positive duty on the State to ally with and protect citizen privacy. (Subtext: not demand equal treatment with private cos!)

Reads the DYC J judgment that quoted US v Jones, Sotomayor opinion.

...still reading from the DYC J judgment.

CJI wants SD to read Para 303. Informational privacy.

Bench rises. Day over. To continue on 23rd January.