Aadhaar bench reassembled. Day 2, Session 2.
SD says that the point about the integrity of the process is substantiated by a Rajya Sabha statement that in six years, 34000 operators were blacklisted.
"These operators tried to pollute the system or make fake Aadhaar cards." SD says that this was 10th April. The updated figure from 12th September, carried in the ToI and ET, is 49000.
SD moves on to the issue of Registrars.
SD says that the Registrars have been empowered to collect demographic and biometric data, as well as KYR+ information.
(This discussion is still in the context of the pre-statutory regime, based on a UIDAI document.)
SD says that according to the UIDAI document, registrars are empowered to retain the data, subject to fiduciary responsibilities.
SD takes the Court through the UIDAI FAQs to explain the position of registrars.
SD explains the concept of a "verifier".
"The verifier is supposed to be appointed by the registrars and verify enrollment documents. It is recommended to use government officials for this."
Services of an outsourced vendor can also be used. The list of verified may be notified.
SD: This model obviously didn't work, given that 49000 enrolment centers have been blacklisted.
SD explains the concept of an "introducer", and who can be an introducer.
SD: Enrolment Agencies are hired by the Registrars.
SD: The person interacting with the resident is the "Operator." An operator is employed by the enrolment agencies to carry out enrolment. He must be 18 years and above, +2 pass, and comfortable with computers.
SD: A supervisor is employed to manage the enrolment agencies. 18+, preferably a graduate, preferable to have prior experience working at an Aadhaar enrolment centre.
SD takes the Court through an MOU between the UIDAI and the Delhi Govt, from 2010, for implementation of the UIDAI programme.
SD: Under this MoU, it says that UIDAI has the mandate to issue identification based on demographic and biometric information. The word "biometric" is seen for the first time in these MoUs.
SD: "The UIDAI will be conducting proof of concept and pilot programmes."
"UIDAI shall develop prescribed standards for the biometric fields."
"UIDAI shall develop prescribed standards for the biometric fields."
Chandrachud J asks whether registrars can only be government agencies. SD says that there is no such limitation - registrars can be private bodies as well.
SD points to Article 299 of the Constitution. indiankanoon.org/doc/1084525/
SD: There was absolutely no legal framework to support the UIDAI. The MoUs are not even contracts in the eye of Article 299.
SD: This is the palpable lack of integrity in this project for all these years. This denuded the rule of law and erodes governance. That is why you now have a situation where 34000 operators have been blacklisted.
Khanwilker J says that Aadhaar Act retrospectively validates all this.
SD says that you cannot have a retrospective validation of the violation of fundamental rights, and he will address that point in detail later.
SD says that you cannot have a retrospective validation of the violation of fundamental rights, and he will address that point in detail later.
SD takes the Court through a MoU between Allahabad Bank and UIDAI.
Chandrachud J asks how the registrars were paid. SD says that he will make a note on the fund flow and submit it to the court.
SD explains to the court how the iris scan system was bypassed through a patch, in Uttar Pradesh, and how fingerprints were masked.
SD takes the Court through some diagrams on how authentications happen through multiple transactions throughout the day.
SD takes the Court through diagrams on how authentications happen through multiple transactions throughout an individual's life.
SD takes the Court through diagrams on the issue of convergence - the linking of a number of services with UID.
SD now begins with the privacy judgment.
SD: This is a very important judgment from our perspective.
SD reads the beginning of the privacy judgment (paragraph 2), which lays out the background of how the privacy case came about.
SD reads out paragraph 23 of Chandrachud J's judgment, which explains the scope of the "right to personal liberty."
SD: The procedure for deprivation of these rights must be "just, fair, and reasonable."
SD reads para 35, which discussed the classic 1899 article on privacy by Warren and Brandeis.
The article discussed how, in the modern world, the scope of infringement of privacy was consistently magnified.
Shyam Divan explains how the right to privacy judgment grounds privacy in ideas of dignity, autonomy, and identify, which pervades the entire Constitution.
Shyam Divan explains how the privacy judgment made the preamble to the Indian Constitution central to the concept of fundamental rights.
SD points to the part of the privacy judgment that says that it is only through the realisation of individual liberties and freedoms that the public welfare is sustained.
SD: One of our contentions is that in a digitised world, the government has to be an ally of citizens, not its adversary. The State must ensure that privacy interests are protected against, say, corporations.
SD points to the part of the privacy judgment that articulates the right to personal autonomy, and says that decisions affecting an individual's life are best left to the individual.
SD: "A constitutional democracy survives when citizens have confidence that the rule of law will prevail." (from the privacy judgment)
SD refers to the part of the privacy judgment that referred to the American SC case of US v Jones, which dealt with putting a GPS system on a car.
SD points to Justice Sotomayor's concurring opinion in US v Jones, which observed how you no longer need physical interference to violate privacy. Information about a person's transactions is enough to give a complete profile about an individual's life.
You can read US v Jones here: law.cornell.edu/supremecourt/t…
SD points to the privacy judgment's articulation of the right to informational self-determination and informational privacy.
He refers to Helen Nissenbaum's work, a sample of which you can read here: papers.ssrn.com/sol3/papers.cf…
SD points to the part of the privacy judgment that located fundamental rights in the transformation from colonial rule to a Democratic Republic.
SD points to the part of the privacy judgment that talks about how civil/political rights and socio-economic rights are complementary, and not at odds.
SD points to the part of the privacy judgment that emphasizes that privacy is not just a privilege of the elite.
SD points to the part of the privacy judgment that stresses the importance of judicial review in order to protect individual right.
CJI asks SD to read the paragraph on privacy and the age of information (306).
This paragraph deals with issues of data mining and data profiling, especially of metadata.
Bench rises. Day 2 over. To continue on Tuesday.
Cheers.
