Thread by @gautambhatia88

Day 2. Aadhaar bench assembles.

Shyam Divan shows the Court diagrams showing the distinction between deterministic and probabilistic methods of identification.

The diagrams show the moments of enrolment and the moments of authentication.

SD says that the machine used at the time of authentication is of a lower quality.
Chandrachud J says that for a manual labourers, it might even be unreadable. That is also the case with ageing.
SD says "absolutely."

SD says that he will finish the technical presentation, take the Court through the privacy judgment, and then the Aadhaar Act.

SD says that there are three problems: the integrity of the process, the integrity of the information, and a pervasive violation of fundamental rights.

SD says that he will address three issues pertaining to fundamental rights: privacy, autonomy, and compelled speech.

SD shows the Court the Aadhaar enrolment form.

SD says that there is nothing in the form that discloses that it is voluntary.
Secondly, just as with the resolution constituting UIDAI, there is no mention of biometrics.

SD: Thirdly, there is no declaration or verification. All this speaks to the lack of integrity of the process. There is nothing in the form that shows the basis on which its information has been gathered. There's no signature.

SD: There is no manner of counseling. This raises the question: is there informed consent?

SD: Yesterday, Chandrachud J asked whether we have objections if the information is used only for specific purposes. The point is that this project is, by design, a general purpose vehicle.

SD: In a welfare state, can the State roll back rights and announce a barter system: that you only have rights if you give your fingerprints and subject to being tracked for the rest of your life.

Chandrachud J asks whether there is an opt-out.
SD says that we have an affidavit from a person who had to get an Aadhaar while getting married, and was told by the operator that he could not opt out.

SD: How can the State compel me to part with any of this information to another private person?

SD: It's one thing to say that the State sets up an administrative scheme and asks for information. But where is the question of compelling me to give it to another private person? The scheme is by design defective.

Chandrachud J asks whether it would make a difference if the private party is an agency of the State.
SD says that there is no question of delegating such a core sovereign function to any private agency.

SD: Part B of the form requires disclosure of mobile numbers and bank account numbers.

SD refers to a sting operation where a television channel went to three enrolment agencies, and each agency quoted a figure for revealing demographic information of the people who had enrolled with them.

SD: Everything about this process from beginning to end is unconstitutional.

SD reads out the "no objection" fields. "There is no counseling even at this stage." There is a complete lack of integrity. UIDAI does not even have privity of contract with the enrolment agencies.

SD discusses the verification procedures in the pre-Act from, including the introducer requirement.

SD: The first use of the word biometrics comes in at the end.

SD points to the forms of ID required to enrol.

(This discussion is about the enrolment form that existed before the Aadhaar Act came into force)

SD: At the time of verification, photocopies of these documents are retained.

Chandrachud J says that you are always giving private information to private players, such as when getting a mobile connection.

SD says that there is no problem per se with an individual parting private information. The point is here that you are being asked to part with information to someone you do not know and have no contractual relation with.

SD: The point is that the private party is so much outside the control of the UIDAI that they can use it for their own commercial purposes. The problem is the process is compromised - that is what distinguishes it for example the Census Act.

Chandrachud J asks "what were the nature of safeguards to ensure that the information was not purloined?"

Chandrachud J gives the example of Dhoni.

SD now comes to the State of Kerala's "KYR+" form (Know Your Resident Plus)

SD says that information in the KYR+ form, meant to be in different silos, can be aggregated, which builds a complete picture of an individual.

Chandrachud J asks a question about differential enrolment rates and access to public services in the North-East. SD says that they are exempted at the moment.

SD takes the Court through the affidavit of Nachiket Udupa, who was required to enrol in Aadhaar to get married.

The affidavit says that the software refused to enrol them unless they stated that they were consenting.

SD: The affidavit says UIDAI should allow cancellation of enrollment for those who want to opt out.

SD now comes to the statutory (post Act) form. "This form says that enrolling in Aadhaar is free and voluntary."

SD says that this becomes completely academic if you're going to have to have it for the purposes of a bank account, PAN Card, government scholarships.

SD: The introducer system was used when there was no other form of identity. An RTI reply dated 28.4.2015 revealed that the number of Aadhaar cards generated through the introducer system is 2 lakhs 19 thousand.

SD: This is 0.03%. So a very small percentage of people did not already have a pre-existing ID.

SD returns to the issue of enrolling agencies.

SD: "Sagar Foods" is an example of an enrolling agency.

SD: "Chirag Constructions."

Bench rises for lunch. To resume at 2 30. Cheers.