Sorry, missed the first fifteen minutes this morning. Aadhaar Day 6 has begun. Shyam Divan is arguing.
Chandrachud J says that there are multiple interfaces between individual and State such as tax, electricity bills etc. Suppose instead of Aadhaar you are required to use a PAN card. How would that be different?
Chandrachud J says that your argument seems to be a problem with centralisation. Is it the centralisation that what makes it unconstitutional? Because every time I use a device with an IP, say to book an Uber, my location can be tracked...
SD: ... by Uber.
SD: ... by Uber.
Chandrachud J says what is the specific additional problem with Aadhaar?
SD: The first problem as you have correctly pointed out is centralisation. Normally, you have information silos.
Chandrachud J: But they are all tracking your location, that is a common denominator.
SD: The first problem as you have correctly pointed out is centralisation. Normally, you have information silos.
Chandrachud J: But they are all tracking your location, that is a common denominator.
SD: This is where the ECHR judgment in Digital Rights judgment comes in. They said "you cannot *maintain* logs." Why? Because it is one thing if a particular utility provider knows about your location. But what happens with centralisation is you have complete tracking.
SD: In the present regime that allows tracking of IP + ID.
Look at the situation 25 years from now. If we fail in this case, 25 years from now we will be addressing "Aadhaar judges." Because there is a full log. Right now - schools and scholarships. They are planning for +
Look at the situation 25 years from now. If we fail in this case, 25 years from now we will be addressing "Aadhaar judges." Because there is a full log. Right now - schools and scholarships. They are planning for +
+ airports as well.
SD: At this point you have multiple IDs. Take the PAN card example. You give one ID, you are identified, you avail your benefit. There is satisfaction with respect to the authority, and there's no question of surveillance.
SD: At this point you have multiple IDs. Take the PAN card example. You give one ID, you are identified, you avail your benefit. There is satisfaction with respect to the authority, and there's no question of surveillance.
SD goes back to the Kerala example from the day before, where the "X" in question was unable to prove that she was alive because she could not authenticate herself for three years, before there was a social media storm.
SD says that we have a situation where your own body can be used to exclude you. This argument will be developed by other counsel.
SD says I want to stress that I'm not saying that somebody is sitting behind the screen and watching. It's about the architecture of the program and this is why it's never been under proper scrutiny.
SD says that no other free liberal society in the world has tried this because it simple wouldn't pass muster.
Chandrachud J says what if someone else like a bank offered to make all your transactions for you and you set standing instructions, like for insurance payments, bill payments, car instalments etc. What is the qualitative difference? My bank maintains a central repository of +
+ all my transactions. We're constantly entering into a world of surrendering our identity - it may be a choice but it's still a central database. If we're willing to surrender our identity, then does the fact that the State is collecting information make a difference?
Chandrachud J says would it be satisfactory if there were norms governing collection and use?
SD says that this is not a question of checks and balances, because the architecture is that of pervasive surveillance.
SD says that this is not a question of checks and balances, because the architecture is that of pervasive surveillance.
SD says that he's alive to the concern that you cannot go back to the pre-digital age, and that is not what he's suggesting.
SD goes back to the point about limited government, reading out the KT Plantations judgment. Rule of law as an implied limitation on government power.
SD reads out Justice Subba Rao's dissent in Karate Singh, which I think everyone knows of by now. :)
SD says that a lot of questions have come this morning about paying electricity bills, phone bills etc. He says that suppose before making any of these transactions, I just had to phone a government official and inform him that I was doing this.
SD reads out the part of Kesavananda Bharati judgment that says that the social and economic revolution has to be achieved consistent with respect for civil and political rights.
SD says that could the Preamble conceive of a State where I am standing there in flesh and blood, with alternative ways of identifying myself, but can be denied my entitlements?
Chandrachud J says that on the issue of exclusion, let's focus on one scheme and see how it's been working.
Kapil Sibal stands up and says that there is a Planning Commission Report from 2005 that lists ten factors of exclusion and Aadhaar solves just one of them.
Kapil Sibal stands up and says that there is a Planning Commission Report from 2005 that lists ten factors of exclusion and Aadhaar solves just one of them.
Kapil Sibal says that this act is premised on the principle of "one nation one identity."
SD goes back to the privacy judgment on the concept of limited government.
SD reads out the Chief Justice's elaboration of democracy in Manoj Narula v Union of India. Link:
indiankanoon.org/doc/199141576/
indiankanoon.org/doc/199141576/
SD quotes a speech by President Kovind which talks about how trust between State and citizen is at the heart of the constitutional governance.
SD says that Aadhaar is premised on the assumption that we are a nation of knaves. This represents a complete breakdown of trust, because the presumption is that if you don't have Aadhaar, then you're a crook.
SD reads out HM Seervai on the concept of limiting legislative power to secure fundamental rights.
SD says that his next point is that of rule of law. The notification of 2009 constituting UIDAI did not mention biometrics or fingerprints.
The statutory norm for collecting demographic data was the census Act. UIDAI did not follow this.
The statutory norm for collecting demographic data was the census Act. UIDAI did not follow this.
SD: The ID of Prisoners Act, the Bombay Habitual Offenders Act etc established the statutory norms for collection of fingerprints. UIDAI violated all these norms.
SD: UIDAI ignored norms laid down by the Supreme Court since 1975, which articulated the fundamental right to privacy, and which was unanimously affirmed in the privacy judgment. All these judgments said that you must have a law if you want to infringe on privacy.
SD: UIDAI ignored the 2011 Standing Committee's recommendations, and pressed ahead in order to create a fait accompli
SD: UIDAI took no responsibility for the safety of the data. UIDAI created an aura of necessity and used enrolled whose quality was dubious.
UIDAI actively funded the SRDHs, so that datasets proliferated, without statutory backing.
UIDAI actively funded the SRDHs, so that datasets proliferated, without statutory backing.
SD: UIDAI violated multiple SC orders saying that Aadhaar must be voluntary.
SD sums up the arguments on limited government and rule of law.
SD says that an individual is entitled to develop her personality without being tracked and registered.
SD says that in a liberal democracy, routine everyday transactions cannot be made conditional on a barter of your biometric information.
SD says that Seervai began his submissions in Kesavananda Bharati by saying two things: that democracy depends on faith in people and in peoples' decisions.
Bench rises for lunch.
To resume at 2 30.
Cheers.
