Thread by @gautambhatia88

Aadhaar Bench assembles. Day 5 Session 1. Shyam Divan to continue.

SD recaps the argument so far on surveillance.

SD discusses the judgment of the European Court of Human Rights in Zakharov v Russia. Link: hudoc.echr.coe.int/eng?i=001-1593…
Wiki summary: en.m.wikipedia.org/wiki/Zakharov_…

Zakharov was a case about interception of telephone communications in Russia.

It was argued that this interception violated Article 8 of the European Court of Human Rights. Link: echr.coe.int/pages/home.asp…

Zakharov held that if there was a system of surveillance in place, without effective remedies, an individual did not have to specifically show that she herself was under specific surveillance. The existence of legislation itself was a violation of privacy rights.

Zakharov stressed the importance of foreseeability, and the requirement of clear rules for specifying when and to what extent surveillance was permissible. There could be no unfettered power.

In order for this, the nature of offences must be set out which can justify surveillance, rules for storage and deletion of information etc

"In view of the risks that surveillance has of undermining democracy, its necessity must be demonstrated."

The ECHR held that the Russian system of interception did not meet adequate safeguards. There was no clarity on when surveillance could be resorted to, there was automatic storage of data, no requirement as to deletion. There was a risk of arbitrary use.

Sikri J points to the paragraph where Russia argued that there were criminal remedies involved, but the ECHR said that even these remedies depended on the person actually could prove injury. Sikri J tells SD "this suppors your case."

SD reads out the judgement in Digital Rights Ireland vs Minister of Communication. Link: curia.europa.eu/juris/document…

This case was about retention of data.

What was at issue was European Directive 2006/24, discussed in paragraph 16 of the judgment.

SD reads from para 25 of the judgment. Screenshot attached.

And further:

And further:

SD reads out the Court's discussion on proportionality. Screenshot:

And further:

The Court held that the data retention directive exceeded proportionality and was therefore invalid.

SD cites S and Marper v UK, an ECHR case concerning the retention of DNA samples and fingerprints even after criminal proceedings had ended with an acquittal.
Wiki: en.m.wikipedia.org/wiki/S_and_Mar…

The UK Courts had said that mere retention did not violate privacy, and if it did, then it was a very mild form of interference.

The ECHR disagreed, holding that fingerprints and DNA samples constituted "personal data." The ECHR discussed the issue of fingerprints specifically, and said that the retention of fingerprints may in itself give rise to important private life concerns.

The ECHR said that retention of fingerprints constituted an interference with the right to respect for private life.

The ECHR then asked whether this retention was necessary in a democratic society. This would be the case if there was a pressing social aim, and if the interference was proportionate.

ECHR said that the protection of personal data is fundamental to the enjoyment of private life.

The ECHR said that the data should not be stored for any longer than necessary for the purpose. The interests of the data subjects and the community might be outweighed by the interest in prevention of crime, but a Court must scrutinise it carefully.

The ECHR found that the blanket and indiscriminate retention of data, even of people who had not committed or were not suspected of a crime, was a disproportionate interference with privacy. It did not strike the appropriate balance between individual rights and social goals.

SD takes the Court through the Union of India's first counter-affidavit, signed by the Assistant-Director of UIDAI.

In the affidavit UIDAI denies that agencies of the State will track people or use it for surveillance. It says that "by design the technology architecture of UIDAI precludes the possibility of tracking. The system is blind to the use at the front end."

UIDAI says in its affidavit that "neither UIDAI nor any agency or department will be able to use Aadhaar to track or surveil. A user department of the govt or agency will only have information pertaining to its own domain. There will be no 360 degree view of an individual."

SD says that the UIDAI has not dealt with the particulars of the affidavits filed by Kelekar and D'Souza, which specified how tracking can be done.

(SD had read out these affidavits on the previous day.)

SD then reads out UIDAI's document titled State Resident Data Hub: Institutional Framework, dating back to April 2012.

SD: Right from 2012, UIDAI encouraged the establishment of State Resident Data Hubs, and there was budgetary allocation, for various state governments.

SD reads out the Introduction. "UIDAI envisages this to provide the states the ability to manage resident data."

SD: "SRDH software is deployed, and Aadhaar data is added, and enriched with local data from other sources. For example, Kerala's KYR+."

SD: "Connect with other databases in the state for a custom view.
UIDAI aims to provide the states with a guiding model."

SD says that there was no statutory framework for this then, and still isn't.
SD goes through the SRDH website of Madhya Pradesh.

"MP SRDH is a centralised data repository containing demographic detaills... from data sets of different govt departments."

Point 6: "View 360 degree profile of the resident."
SD: Note the contrast. UIDAI specifically said 360 degree view is impossible.

SD: "MP says that this will be the "single source of truth as it maintains demographic and biometric information."
SD: So biometrics are not only with the CIDR.

SD: "Single source of truth." Remember the Ministry of Truth in 1984?

SD points to the authorisation of seeding and reverse seeding.

The MP SRDH website is here: mpsrdh.gov.in

SD takes the Court through the SRDH of Odisha. osrdh.odisha.gov.in/srdhportal/Lda…

SD says that the whole point is to store and integrate information for a 360 degree view, which is what UIDAI specifically denied on Affidavit. He shows a diagram of the 360 degree view.

Chandrachud J says that the diagrams show that there is a general database for the disbursement of social welfare benefits. 360 degree view may be a catchword used by consultants.

Chandrachud J says in Europe you don't have this kind of State involvement in social welfare benefits.
SD says that in Europe it's actually much greater.

Chandrachud J that if the government is confining itself to social welfare benefits, and checking if people receiving benefits are alive or not, and not profiling political beliefs, can't it have a legitimate concern in ensuring that the identity of beneficiaries is maintained.

SD says that that concern cannot justify aggregation.
Chandrachud J says that aggregation might be in a broad sense or in a limited sense. Aggregation for ensuring social welfare benefits, why wouldn't that pass muster?

SD says he will address this after finishing with the SRDHs.
SD comes to the Haryana SRDH.

Chandrachud J points to the point about savings due to weeding out ineligible beneficiaries, and says that this is what is concerning the Court. The Court will have to strike a balance.

SD talks about Haryana's SRDH.
He then comes to Telangana's SRDH. Website: srdh.telangana.gov.in/tgsrdh/

On the SRDH you get citizens names, location, and Aadhaar numbers. SD says that in our country, you can judge people's communities from their names.

SD says that you know all this because of Aadhaar, because the information is aggregated.

SD says that you are all students of history and can anticipate the future, you know what happens when the names and location of communities in this fashion are available.

Khanwilkar J says that it only shows the place where you are generally resident, not resident at that particular moment.

SD says he will summarise his points on the State Resident data hubs. First, there is no authority of law.

SD: These operations result in profiling and require to be removed.

SD: Secondly, the collation of data in state hubs enables religious, caste-based and community profiling, and potential targeting of individuals, and a pervasive loss of privacy.

SD: Thirdly, as held in the privacy of judgment, aggregation of data results in the destruction of privacy rights. There is a grave danger in allowing the State to amass this much power.

Bench rises for lunch. To reassemble at 2 30.

Cheers.