Thread by @gautambhatia88

Aadhaar Bench assembles. Day Five, Session 2.

SD takes the Court back to Kelekar's affidavit, which discussed how IP acts as a geographical locator.

The second concept is that of a unique device ID.

SD says that he will illustrate with respect to the Kerala Dairy Farmer Welfare board, which has a pension scheme connected to Aadhaar.

SD shows screenshots of the website.

The columns include Log ID, Aadhaar Number, Validation Success (Y/N, biometric mismatch), Client IP (approximately a range of two kilometer radius can be located), request date, unique device ID (which takes you within 200 - 500m of where it is registered), UBC ID.

SD: This shows you that "X" person has tried to secure an authentication from these IPs on different dates, and each time she failed. Another person "Y", has also made three attempts, which failed. This is what UID knows. Name, number, whether it failed and reason for failure...

... and it knows where you are located within 200 - 500 m in real time. This number has been mapped onto GoogleMaps.

On these three different days, X has traveled to different parts of Kerala, trying to get authenticated. We are able to locate the dates on which she has traveled, and the time of authentication.

SD says this is real-time mass surveillance being carried on by the states, and can't be allowed.

SD comes to the information that the Dairy Board has. There is also a Block ID - which shows the Taluq. Society ID - the postal locality. Name, UDCID.

SD: The largest area is the district ID. Allapura District. Block ID - Ambalapura. Locality - Illichera. All this is known.

Chandrachud J says that the Dairy Board may be concerned about some poor man trying to get his pension, and following it up to ensure targeted delivery.

SD says that this is about surveillance.
Chandrachud J says that there is no surveillance in making sure that somebody gets their pension.
SD says that the surveillance is though tracking movement.

Chandrachud J says that when you have your iPhone is in your pocket you can be tracked.
Bhushan J says how can you have surveillance just by knowing this information.

SD says that mass surveillance means that whenever an authentication takes place you can locate wherever the person is.
Bhushan J says that when you use ATM card, you can be tracked.

SD says that in the case of the ATM, only the bank knows. Under Aadhaar, you have 139 different schemes, and S 57 allows for more - a full electronic trail from morning to evening.

Shyam Divan says that this would be the envy of North Korea.
Chandrachud J says that it is also the envy of the World Bank and The Economist.

Chandrachud J says that this Dairy Board example is an example of the positives of Aadhaar, because it allows for targeted delivery, and has been praised by the World Bank.

CJI says that Mr Divan is saying that the shadow is becoming larger than the man, and that man is being deprived of his solitary splendour.

Chandrachud J says that one should not get carried away with the rhetoric of surveillance, and everyone must come to the brass tacks.

SD says that surveillance is at the core of this case. The meaning of surveillance is the tracking of citizens across the day and across their lifetimes.

SD says that this is not just about the Kerala Dairy Board, but about how that is a microcosm of the program as a whole.

SD says that the point is about concentration of power that is enabled through the ability to carry out surveillance.

SD repeats that the point is not whether someone is actually sitting and tracking you, but the fact that the program enables an architecture of surveillance.

SD says that if the word "surveillance" is a problem, the word "invasiveness" will also suffice.

SD says that before he goes on to the next point, because it is 30th January, he will briefly talk about Gandhi's satyagraha against the Transvaal ordinance.

This Ordinance required Indians in Transvaal to register and give fingerprints, on pain of imprisonment and deportion.

The certificate issued could be demanded at any point by an official.

If an Indian wanted any government office to do anything for him, he had to show the certificate. Gandhi said that "I have never known legislation of this kind directed against free people anywhere."

Gandhi said that fingerprints were taken only from criminals, and this amounted to degradation.

"The Ordinance brands the community as criminal and suspect."

SD says that his next submission is on limited government, constitutionalism and the rule of law.

SD says that limited government stems from the preamble and the values underlying the constitution.

SD says that the State, which is created by the people, cannot expand to a point where it acquires such a huge dominance over the people.

SD: The second point is about the space a person has to live.
Thirdly, can limited government require you to identify yourself in only one manner, and that manner requires you to part with biometrics.

Can the State say you must identify yourself in this one manner, or I won't recognise you any more?

SD: The last issue is that of dignity. We believe that this program violates both individual and collective dignity.

SD: Can all these rights that we have be made conditional on forced authentication through only one method?

SD says that the last part is good governance and rule of law. For seven years this program functioned under administrative notification that didn't even mention biometrics.

Chansrachud J asks whether, on the issue of rule of law, Article 73 would apply.

SD reads out Charles Evelyn Hugh's remarks on the meaning of limited government.

SD explains the meaning of limited government under the Indian Constitution.

He reads out State of MP vs Thakur Bharat Singh. indiankanoon.org/doc/766560/

Screenshot below:

SD talks about the enunciation of constitutionalism in the I.R. Coelho judgment.

SD cites Y. V. Chandrachud's judgment specifying that the social goals of Part IV of the Constitution cannot be achieved at the cost of fundamental rights.

Bench rises.
Will continue on Thursday.

Cheers.