Aadhaar Bench assembles. Day 4 Session 1.
Shyam Divan says that Section 59 of the Aadhaar Act, which validates all acts of the UIDAI prior to the Act, applies only to central government actions, as per its text.
SD: This section does not control acts of private entities, like enrolment agencies. Their actions are not protected.
Sikri J says that under the pre-Act regime also, UIDAI also appointed.
SD says no. There was no privity of contract prior to the Act.
Sikri J says that under the pre-Act regime also, UIDAI also appointed.
SD says no. There was no privity of contract prior to the Act.
Sikri J says that the central government appointed UIDAI, and all the acts flow from that.
Shyam Divan says that the notification establishing the UIDAI might protect the actions of the central government in entering into the MoU, but doesn't cover the actions of the registrars.
Shyam Divan says that the notification establishing the UIDAI might protect the actions of the central government in entering into the MoU, but doesn't cover the actions of the registrars.
Chandrachud J says that the actions of the registrars are traced back to the MoU.
Shyam Divan says that enrolment agencies are not covered even under the MoUs. As for the Registrars, there actions are not the actions of the central government.
Shyam Divan says that enrolment agencies are not covered even under the MoUs. As for the Registrars, there actions are not the actions of the central government.
Shyam Divan says that therefore, the enrolments prior to the Act are not validated by Section 59.
Shyam Divan says that in any case, you cannot have a retrospective validation of a fundamental right violation.
SD: This is especially when the violation is complete.
Chandrachud J asks whether Aadhaar was used by private players before the Aadhaar Act, because that would not be validated under Section 59.
Shyam Divan says that he well get the specific factual details on that.
Shyam Divan says that he well get the specific factual details on that.
Chandrachud J says that the privacy judgment says that there must be a basis in law. Section 59 attempts to provide that by bringing about a legal fiction. It will have to be considered how you deal with data breaches prior to the Act.
Shyam Divan says that informed consent is crucial, and you can't have a retrospective validation saying that there was always consent, prior to the Act.
Shyam Divan says that even if this provision is to be upheld, it should be given the narrowest reasonable construction.
Shyam Divan says that he will now specify the heads of challenge to the Aadhaar Act. The first head is that of surveillance. The architecture of Aadhaar enables surveillance.
The second head is violation of privacy. Between 2010 and 2016, there was no law authorising the violation of privacy. Even after the Aadhaar Act, the violation continues. The citizen is compelled to report her activities to the State through the electronic footprint.
Shyam Divan says that even for availing of subsidies, an alternative means of identification should be allowed.
SD: In a digital society, an individual has the right to protect herself by maintaining control over personal information.
SD talks about aggregation of information silos.
SD talks about aggregation of information silos.
SD: The third head is limited government. The Constitution is not about the power of the State but about limits to that power.
SD: Aadhaar allows the State to dominate the individual through an architecture that enables profiling, and by the power to cause civil death by deactivating Aadhaar.
SD: Instead of the State being transparent to the individual, the individual is made transparent to the State.
SD: The fourth head is that this was not a money bill. This will be addressed by Mr Datar and Mr Sibal.
SD: The fifth head is that the procedure under the Act violates Articles 14 and 21. There is no informed consent. There is no opt-out option. UIDAI has no direct relationship with the collecting agencies. The data collected and stored lacks integrity.
SD: This data is not verified, and now it's being taken as gospel (he says, for example: eKYC).
SD: Biometrics are untested, and probabilistic. The use of biometrics has led to exclusion from welfare schemes.
SD: If biometrics don't work, then a flesh and blood individual ceases to exist. If your biometrics don't match, you become a ghost.
SD: A citizen in a democratic society has the right and choice to identify herself in a reasonable manner. Mandating a single highly intrusive form of identity is inconsistent with democracy.
SD: Authentication records include the time of authentication and the requesting entity. This can be stored for 2 + 5 years. This enables real-time surveillance.
SD: The notion of a central database where all data is stored in one place itself smacks of authoritarianism.
Chandrachud J asks who maintains the CIDR.
Chandrachud J asks who maintains the CIDR.
SD says that information about the specific details of the CIDR is not in the public domain because of natural security concerns.
Chandrachud J asks whether the source code is with the UIDAI.
Shyam Divan says that it is proprietary, and not with the UIDAI.
Shyam Divan says that it is proprietary, and not with the UIDAI.
Shyam Divan says that private enrolment agencies cannot be entrusted with the crucial task of ensuring informed consent.
SD says that the definition of "resident" is arbitrary and has no verification magazine.
SD says that Section 7 is unconstitutional, because an individual's entitlements cannot be made subject to compelling her to give up her constitutional rights. "It is both an unconscionable and unconstitutional bargain."
The individual has a right to remain free of monitoring as long as they have not violated any criminal law.
SD says that on cancellation of Aadhaar, the services will be disabled personally. "You can just switch off a person."
SD reads out the circumstances in which an Aadhaar number can be canceled. The last circumstance is "where it appears fraudulent to the authority."
Sikri J says why shouldn't Aadhaar be canceled it it has been fraudulently obtained.
Sham Divan says that the point is that you are giving that power.
Sikri J says that that is only a case of an abuse of the power.
Sham Divan says that the point is that you are giving that power.
Sikri J says that that is only a case of an abuse of the power.
Khanwilkar J says that there is a provision to rectify in cases of wrong cancellation.
SD hands over a compilation to the Court that deals with the issue of the circumstances in various jurisdictions where the taking of biometrics is considered reasonable.
Shyam Divan takes the Court through the Census Act of 1948.
You can read the Census Act here: advocatekhoj.com/library/bareac…
SD points to Section 15 of the Census Act to illustrate the nature of protection accorded to census data.
SD takes the Court through the Identification of Prisoners Act. indiankanoon.org/doc/1747275/
SD shows the Court that Section 7 of that Act provides for destruction of personal data if the prisoner is released without charge.
SD takes the Court through Section 32A of the Registration Act. See here: indiankanoon.org/doc/84079461/
SD says this is for a narrow purpose, taken one time, and is with one registry. This is an example of a legitimate purpose and done proportionately.
SD takes the Court through the 1959 Bombay Habitual Offenders Act, the successor to the Criminal Tribes Act. You can read it here: legalcrystal.com/act/135870/bom…
Under S 6, palm impressions can be taken. But after five years, the registration of a "habitual offender" comes to an end.
Sham Divan says that all these acts are narrowly tailored, unlike the Aadhaar Act.
Shyam Divan says that he will now begin with the argument on surveillance.
Bench rises for lunch.
To resume at 2 30.
