Thread by @gautambhatia88

Aadhaar Bench reassembled. Day 3, Session 2.

Shyam Divan begins with the Aadhaar Act. uidai.gov.in/legal-framewor…

Shyam Divan reads out the statement of objects and reasons of the Aadhaar Act, that talks about the need for proof of identity, identification of beneficiaries, transfer of benefits etc

Shyam Divan says he will make his comments after taking the Court through the statute. He reads out the Preamble and the Long Title.

Shyam Divan takes the Court through the definitions clause, including the definition of "authentication process" and "authentication record", which is a record of the time of authentication, the identity of the requesting entity, and the response.

Shyam Divan says that therefore, both the time and the requesting entity are known.

Shyam Divan reads out the definition of "benefits" and of "biometric information."

SD reads out the definition of "core biometric information" (clause J), and compares it with clause g ("biometric information"), and says that both clauses are open-ended.

SD reads out the definition of "enrollment agencies", and says that even after the Act, the system remains privatised.

SD reads out the definition of "registrar", and says that as in the pre-Act regime, the registrar need not be a government body.

SD points to the definition of requesting entities, which are the entities that submit biometric information to the CIDR for authentication.

SD reads out the definition of resident (a person who has lived in India for at least 180 days in the last twelve months). "This is a rather curious definition."

SD takes the Court to Section 3, which is about enrolment. He says that the words used are "shall be entitled to obtain." "Consequently, getting an Aadhaar number is a right, not an obligation."

SD reiterates his earlier point that the authentication process is probabilistic.

SD points to the counseling requirement in Section 3. He says that the concept of informed consent, which is reflected by the counseling requirement, will become completely illusory if the mandatory character of Aadhaar is upheld.

SD reads out Section 4. He reiterates the point that the enrolment procedure is completely compromised and has no oversight. Now, under Section 4(3), the data can be used as proof of identity for any purpose.

SD reads Section 6, which provides for updation of data. He says that "biometric information changes over time." This compromises the whole idea of uniqueness. He says he will develop this point later.

SD reads out Section 7, which effectively allows Aadhaar to be made mandatory for receipt of benefits or services.

SD says that this provision negates the right of the individual to identify herself in a reasonable alternative manner.

SD reads out Section 8, which deals with requesting entities.

SD goes through Section 10 (the central information data repository).

SD takes the Court through Section 4, which establishes the UIDAI.

SD points to Section 23, which lays out the powers and functions of the UIDAI.

He says that the UIDAI has been given vast powers, for example, to add to the biometric indicators (such as DNA), under regulations.

SD says that the UIDAI is allowed to contract out the security of the database. He says this raises security concerns, and has been documented and shown in the record.

Shyam Divan says that the UIDAI has the power to deactivate an Aadhaar number. He says that this is effectively a power to deprive an individual of all her Civil rights.

SD points to 23(3), which allows UIDAI to enter into memoranda of understanding with other bodies, public and private.

SD comes to Chapter VI of the Aadhaar Act, which deals with protection of information.

SD says that all the information the Act says you cannot share has already been shared.
Chandrachud J asks how a breach of the statutory provision affects the constitutionality of the statute itself.

Shyam Divan says that the statute is unconstitutional because it seeks to sanctify the Aadhaar program, which is incompatible with a free and open democratic republic.

SD says that this argument will be developed further, and now he is trying to place some facts on record.

Chandrachud J says that there are two claims. First, that the program is unconstitutional. And secondly that there have been breaches that need to be plugged. He asks SD if he will be making both arguments.

SD says that the key question is whether an individual is entitled to protect herself by making a choice about which method to use to identify herself. The breaches help to substantiate the strength of this basic claim - the claim to make a choice.

SD says that the concern is that you will end up having a complete surveillance society of this system in its present form is allowed to stand.
SD returns to taking the Court through the Act.

SD says that when you know the time and the requesting entity, the purpose of authentication will automatically be known.

SD reads Section 32 of the Act with the Aadhaar Enrolment Regulations, which provide for storage of metadata.

SD says that he is not saying that somebody is sitting and tracking you. The point is that the architecture is what enables a surveillance State.

Chandrachud J says that one important question that the Court will have to consider is that today we are living in a networked world where private parties are anyway tracking everyone in great detail. So how does the interpolation of an Aadhaar number really change anything.

SD agrees that this is an important point, and says he will address it in some detail.

The Chief Justice formulates a set of propositions that he says are at the basis of this case. Unfortunately, I could not type fast enough to take them down, but they were fairly accurate.

Kapil Sibal stands up and says that a key issue is whether, in this networked world, a single form of identity, to which everything is linked, is safe.

Chandrachud J repeats an observation that he made the day before. He asks, "can't you obviate the problem of aggregation of data sets by specifying in law that data can be used only for the purpose that it is collected."

SD resumes. He says that there is a crucial distinction between private parties and the State. With private parties I can opt out.
Chandrachud J asks, to what extent do you have an actual choice in today's world, even with respect to data shared with private parties.

SD says that the point is that the State has for more power with respect to an individual.

SD says he will demonstrate this when he talks about State Resident Data Hubs.

Sikri J says that one question is to what extent Aadhaar can be used.
Shyam Divan says that in a democracy, there has to be a certain amount of trust between State and individual. So if an individual says that she has an alternative way of identifying herself, the State needs

+ to accord that basic trust and respect and allow it, as long a that alternative is reasonable. This is especially so because biometrics are probabilistic.

SD points to Section 47, where an individual has no right to complain in case of a violation of the Act, and only the UIDAI has that power.

SD points to Section 48, which allow the government to take over control of the entire record by citing a public emergency.

SD says that in view of our country's not too distant history, this worries us.

SD points to Section 51, which allows for delegation. Section 53 - power to make rules and regulations.

SD points to Section 57, which allows the use of Aadhaar to establish identity for any other purpose.

SD says that Section 57 extends this whole network and ecology to just about anyone, and you don't even need a law for that.

Sikri J says, what is the harm if you're just giving the number and nothing else, no biometrics.
SD says that firstly, you may not want to have this information spread around. The number when used with other information publicly available can be compromising.

Chandrachud J says that the biometric information remains only with the CIDR.

Shyam Divan says this is not so. He takes the example of fingerprints being skimmed off.

Bench rises. To continue tomorrow at 11 30 AM.

Cheers.