Thread by @prasanna_s

#Aadhaar hearing. To resume shortly. Shyam Divan to continue for the Petitioners. He is expected to complete his submissions in the first half today. However more petitioner arguments by other counsel to follow. Thread.

SD continues to read the affidavit of Mr. Siraj Dutta who did an investigation into two Aadhaar related starvation deaths in Jharkhand. (Premani and Etwarya Devi).

Discloses the following problems.

1. Premani pension transferred to someone else. Noone was aware until his investigation happened. Because the other person's aadhaar was linked to Premani's Aadhaar. (The NPCI mapping problem, which is now quite famous.) ...

2. Ms. Etwarya Devi also denied rations and pensions. Authentication problems also. Justice Sikri says the point is taken and wants SD to proceed with the legal aspects.

SD then says he will keep it short and summarises the 11-year old Santoshi's case.

DYC J points to the leprosy affidavit and how by the very nature they have no fingerprints or erased or distorted fingerprints. SD thanks him and reads the leprosy affidavit.

SD summarises that:

1. These go to the root of dignity and how dignity is denied to people.

2. In a democracy, they need to be given choices to do a basic thing like establishing identity.

DYC J asks about level of internet permeation in the country.

SD says that is an issue. And the only answer the other side has is a buffered authentication where all auth packets are uploaded later.

DYC J says these affidavits show both how aadhaar causes exclusion and does little to curb misuse by dealers (which is often the problem based on his knowledge of writ litigation in Allahabad). Its a clear 14 ground, he says.

Kapil sibal shows a report of IndianExpress today...

... on how thousands are excluded just in Delhi. He also says but global business wants to push for Aadhaar. The poor do not want aadhaar.

SD sums up the dignity and how one-s own body is used against someone.

SD then reads affidavits of people wanting to opt out and how opt out is a necessary right for informational self determination.

Meghalaya People's committee affidavit and Melroy Fernandes of Mangalore affidavits read.

SD reads the affidavit of Dr. Rakesh Goyal..a distinguished cyber security expert, who has undertaken security compliance audits of AUAs and KUAs.

He has annexed the six methods of hacking Aadhaar and storing and skimming biometrics.

... he says no control witb UIDAI or auditor that AUAs discontinue storage of biometrics after the audit.

DYC J asks whether Aadhaar has a safeguard against something similar to credit card fraud.

SD denies and says that is the point in the affidavit. Points to how UoI keeps referring to how biometrics are fully safe, encrypted etc. If they are stored, they are replayed any...

...number of times.

A long discussion between Sikri J and DYC J.

Sikri J asks if Rakesh Goyal letters to UIDAI were replied to.

SD says after he filed an affidavit he got notices from UIDAI. SD also says this is UIDAI style of functioning ...cites how @thetribunechd journalist @rachnakhaira got an FIR filed against her for her exposure.

SD then cites the recent Surat aadhaar PDS biometrics scam. Links to how this exactly relates to the modus operandi that Rakesh Goyal has outlined.

SD reads the full Surat PDS story and says this is possible even if we have to see if this is what exactly happened in that case.

SD then reads the Police press release on the Kanpur enrollment scam.

Two things.

1. Fingerprints cloneable.
2. Iris authentication bypassed by reverse engineering and modifying the UIDAI enrollment software.

Refers again to the 49000 enrollers being blacklisted and questions the integrity of the system.

SD asks why should any citizen trust this system? Trust is to be earned..not made mandatory by law.

SD about to wind up.

SD says his last point is on false positives in biometric deduplication.

Says 6 crore and 23 lakh people have been denied aadhaar as a biometric deduplicate.

Says that figure is bigger than population of karnataka.

Says it is impossible that such a population has queued up to defraud the government of india to enroll twice over.

Says this is because of the false positives and it is a major problem.

SD reads Prof. Reetika Khera affidavit on the school attendance audit in Jharkhand.

Says how there are more children than what the attendance records states. Because other girls either donot have aadhaar or cannot authenticate.

SD says how this will be a problem two months later when the teachers would be hauled up for giving midday meals to ghosts.

SD then moves to philosophical aspects of body and the state.

SD asks if the body is the citizen's or the State's? If it is the latter, surely we are living in a totalitarian state.

SD reads Peter Benson article expositing the right of bodily integrity.

SD reads passages on violation of bodily integrity being akin to slavery.

SD says State's insistence that it will recognise the existence of a person only in one manner who is otherwise present in his flesh and blood...is a violation of bodily integrity among other things.

SD says there is no eminent domain for the State that extends to citizen bodies.

SD says state cannot use person's body as her general purpose marker.

Hands over a note making short bullet points on Body, Autonomy, Personhood and Article 21 violation in Aadhaar.

SD emphasises the need for free and informed consent for collecting biometrics.

Rounds up with Mahatma Gandhi's views on Transvaal ordinance as being humiliating of individuals.

SD making concluding remarks before the Court rises for lunch.

1. Personal autonomy extends to digital biometric info.
2. Trust. How the very fabric of constitution is based on faith on people. Aadhaar criminalises a whole people.
3. Rule of law and how the entire project...

SD says Rule of Law will be elaborated by Gopal Subramanium later. Sikri J asks how much more needs to be said. SD says there are several aspects of Rule of law and despite 6.5 days of hearing, has only covered a subset.

4. SD rounds up with the totalitarian state argument.

Thanks the bench for an elaborate hearing.

Court rises for lunch.

Kapil Sibal starts. He says he is appearing for 2 writ petitioners and 1 intervenor.

KS begins by complimenting Shyam Divan on the passion and hardwork he has put in in this matter. Justice Sikri agrees. CJI smiles in agreement.

KS: never before has this Court had to contend with a matter with as far reaching consequences as this one.

Every child and grandchild aadhaar number is sought to be taken.

1. Power of information is immense.
2. No more powerful tool than information.

KS says he agrees with @narendramodi statement in Davos that he who controls data of the world controls the world.

Says likewise in India.

KS: Aadhaar is nothing but Right to information Act of the state.

Aadhaar makes the individual more accountable!

It is the power of information that makes discoveries patentable, he says.

KS: No safe technology in the world. If anyone tells you that, he is lying. Plain and simple.

KS: No technology is free from misuse.

Sikri J : are you then saying we should do away with every technology.

KS: this is different because it transfers the power of information.

KS: Which is why this is the most important case since independence. Nothing would affect us and all future generations than this one.

KS: Bench has to reflect on why most powerful corporations now such as google or uber own few assets other than information.

KS: Heart of Article 21 is choice. The State seeks to deprive individuals of the choice of manner of identification.

KS: article 21 says that any measure of state must both be procedurally and substantively reasonable.

KS: My thumb impression is my property. Can I be asked to part with my fingerprints without any reciprocal promise of safeguards?

The process of enrolment and auth is procedurally unreasonable.

KS: Identity has nothing to do with one's entitlement or status. Identity is only a mode of proof.

KS: This Bench is bound by 9-judge bench decision of St.Xaviers judgment where no condition can be made that abridges FRs.

KS: Biometrics are a western concept. Countries are either mono or at best biracial and their biometrics are clear etc.

Here most people's biometrics are frail.

KS: Our constitution much grander than US constitution where state action has to be tested against 21, 14, 19...and also 20 (3).

With aadhaar all info is already extracted out of individuals...20 (3) is effectively wiped out.

KS:
1. Digital world more susceptible to manipulation than physical.
2. No personal data should be put to risk in the absence of technologically assured to be safe environment.
3. Such a level of assurance is impossible to obtain in the digital space.

4. Biometric and demographic info once part of the digital world is irretrievable. A genie out of the bottle can never be put back.
5. The digital world is a vehicle to benefit the information economy.
6. The move from information economy to an architecture of...

...information polity has far reaching effects on rights that are constitutionally protected. (Me thinks: Thats an aha moment).

KS: Information is the market now. Aadhaar wants it handed on a platter. All the preferences and behavioural patterns of 1.3Bn Indians.

DYC J: In the Act, Section 3 is an entitlement. By its very nature it empowers the individual, no? Where did the notion of mandatory aadhaar originate?

KS: Reads Section 3 and Section 7 and says Section 7 makes it mandatory. (Also comments that noone who has enrolled has been counselled in the manner as specified under S3. Be that as it may).

DYC J: This confines itself to subsidy, benefit or service drawn from consolidated fund of india.

KS: That is my argument. No power to make it condition precedent..S 57 is wholly unconstitutional.

KS: Secion 7 has a separate challenge. But says DYC J is right to say S 7 deals only with consolidated fund of india.

KS: Problem arises because parallel legislations like income tax act, PMLA rules etc are amended to req aadhaar.

KS reads the definitions of subsidy, benefit and service under the Act.

Section 8 talks about consent. But where is consent when every interaction in the civil society needs aadhaar.

Says consent provision is fully illusory.

Where is the concept of a consent for kids?

We are creating a monolith. A system of no choice. An RTI Act for the state.

KS: CIDR is controlled by a foreign entity. UIDAI have no control over it or its source code. Some commotion among the Respondents section. (Me thinks and knows:this is technically an incorrect statement.)

DYC J asks who is a requesting entity and says defintion 2 (u) is broad and includes any person who submits auth requests. Agreement in the bar.

KS: Reads the list of all requesting entities from Schedule under Auth Regulations.

DYC J asks 8 (3)(c) does not make it mandatory for a requesting entity to insist on aadhaar.

KS: Says alternatives there are among biometric and demographic.

DYC J and Sikri J disagree.

KS invites them to interpret 8 such that it is not mandatory. But says aadhaar act is about aadhaar and not alternative modes of identification.

There is a little bit of confusion on 8 (3)(c)...Not relevant.

There is a discussion on Section 57 and PMLA Rules.

Sikri J observes that the presumption appears to be that every citizen is a money launderer.

KS smiles in agreement. Says all these tall claims are good politics.

Sikri J in conversation with DYC J and CJI.

KS reads Regulation 26 of Authentication Regulations...explains the difference between meta data and data.

KS also points out another absurdity, at the insistence of @udayb86 that after six months even the individual loses his right to access auth info...but is archived and usable by the State.

KS asks why should citizens and grand children of our citizens be put to such grave danger?

KS makes a fine difference where Google atleast gives him something useful whereas Aadhaar gives him nothing.

KS says taking provision after provision it has got nothing to do with moneybill but @PChidambaram_IN will deal with it in detail.

DYC J : Nexus for money bill comes from Section 7 and consolidated fund of india.

KS: points to @PChidambaram_IN and says he will handle it because he knows more about money.

Sikri J: May be Money bill..but you know about Money too!

PC: Points to KS and says...

...KS knows about Money and Bills! Laughter allround.

KS then takes through the immense power at the hands of state to deactivate and turn off one's email.

KS: In IT it is never a question of whether something is misused..but only when.

So the general principle of possibility if misuse being not a ground of challenge to legislation does not apply.

DYC J has two questions. (After KS points to today's @bsindia report on private companies in digital payments wanting Aadhaar and their intervention application here)

1. Long line of decisions where colourable exercise is not a ground of challenge and
2. Long line of decisions..

..where possibility of misuse is not a ground.

JS promises to deal with both.

Bench rises for the day.