Thread by @gautambhatia88

Aadhaar Day 7 has begun.

Shyam Divan continues reading out the affidavits of starvation deaths in Jharkhand because of Aadhaar linking failures.

Sikri J asks Shyam Divan to frame the factual points in constitutional terms.
Chandrachud J points to the next affidavit which is about exclusions caused to people with leprosy.

Shyam Divan says that the issues here pertain to exclusion, death, and dignity. The reports are about extreme situations.
SD says that the basis point is that in a democracy, there has to be an element of choice. There can't be just one method of identification imposed.

Chandrachud J says that one thing the Court needs to look at is the level of internet penetration in the country.

SD says that the PoS machine has a memory, so if the internet fails, the machine is often taken to another place which does.

SD says that all Aadhaar can do is stop a very limited kind of misuse (identity fraud), and there are other ways to weed out leakages.

Chandrachud J says that the affidavit seems to show that even after Aadhaar, the citizen remains dependant on the PDS dealer.

Chandrachud J says that while that argument may not furnish a constitutional ground, but the argument that Aadhaar itself is causing exclusion nay furnish a ground under Article 14.

SD says that persons who cannot authenticate are treated as "ghosts", and as mere statistics. He says this cannot meet the tests under Articles 14, 19, and 21. This is especially so because the system is coercive.

SD says that his next point is that Aadhaar doesn't allow an opt-out. This is crucial from an informational self-determination point of view. He says that there must be a right to opt-out.

SD reads out affidavits from people who have asked to be able to opt-out, on the ground that there was no genuine informed consent at the time of enrolment.

SD reads out a collective affidavit from Meghalaya from people who want to opt-out of Aadhaar.

Chandrachud J asks the position in the North-East. SD says that there are places where the roll-out is low, and they have been exempted.

SD reads out the affidavit of Rakesh Mohan Goel, a computer industry expert who went and audited enrolment centres. He found that those people were retaining biometrics and storing them, and the UIDAI had no way of knowing.

Rakesh Girl's affidavit says that the biometrics of Indians are available to private entities, can be and are being stored in logs.

The affidavit says that because of the architecture of Aadhaar, UIDAI has very little control over this.

Rakesh Goel has annexed a paper to the affidavit, based on 25 audits, that talks about six ways of hacking.

Rakesh Goel's affidavit says that there is no way of knowing, after an audit, whether the storage is continuing or has stopped.

SD says that when you part with something as precious as biometrics, there has to be a fiduciary relationship between you and the person taking it.

SD says: "how can you trust a system like this?"

Chandrachud J asks how the authentication machines are purchased.
SD says that UIDAI has technical specifications, but the purchase is private.
Chandrachud J asks whether the enrolment agencies are chosen by UIDAI.

Chandrachud J takes the example of credit card fraud (swiping), and says "is this possible with Aadhaar?"

SD says that it is possible to hack into these systems, which are not as secure than the CIDR.

SD reads out Rakesh Goel's academic article that explains the six ways of hacking.

(This is part of his argument on bodily integrity and the right to control one's information about oneself.)

SD says that the point is that biometric data is easily compromisable.
He says that the basic point is that this is a reason why people do not want to be on Aadhaar, and why they should not be *mandated* to get into the system.

SD says that while some of these leaks can be plugged, but the basic design is faulty.

SD takes the example of what happened in Surat two days ago, and says this illustrates Dr Goel's warning.

In Surat, the biometric data of ration card holders was stored and then used to siphon off.

SD takes the Court through the mechanism of producing artificial fingerprints. The operator's fingerprints are cloned. When UIDAI found this out, they added iris authentication. However, the hackers then found a way to bypass that as well.

SD says that the first point is that cloning of fingerprints is easy and it's possible, and it's been done.

SD: What is the integrity of the system, and why should anyone trust this? This is a question of my right to protect my body and my identity.

SD: If the system is so insecure, why am I being mandated to authenticate through fingerprints for every transaction?

SD points to an RTI reply from 2017 that says that 6 crore 23 lakh biometric enrolments are rejected because of duplicates. This is larger than the populations of Gujarat.

SD says that the more the database expands, given that this is a probabilistic system, the more times you will have a match. SD says that this is indicative of exclusion, and that the system is saturated, leading to unjustified rejections.

SD reads out Dr Reetika Khera's affidavit, who is an economist at IIT Delhi, and works on the NREGA.

The affidavit speaks about biometric authentication failure at a tribal school, where those whose fingerprints were not recognised by Aadhaar, were not marked present.

SD says: "these are not ghosts in the system. They are flesh and blood girls attending the school, and Aadhaar is not recognising them."

SD: Secondly, you're creating records for an entire lifetime, starting from school. Is this not a surveillance society?
Thirdly, there is no statutory sanction.

Sikri J says that in fact later, the teachers may be hauled up for inflating numbers.

SD says that he will now address the question of whether an individual's body belongs to her or to the State.

SD: The question is, in a digital world, how do I exercise control over my body?

SD reads out an extract from an article by Peter Benson in the Oxford Handbook of Jurisprudence, which says that individuals have an innate right over their bodies.

The right to the body is placed at a higher pedestal than the right to property.
In a liberal democratic culture, the basic value is the prohibition of slavery, which means that an individual's body cannot be used for purposes that she does not endorse.

SD: "Every individual is a self-authenticating source of valid claims."

SD says that this is at the core. If a person exists in flesh and blood, where is the question of denying her anything? This is at the core of Article 21 and the relationship between the individual and the State.

SD: In a liberal democratic culture, can the State say that "I will choose to recognise you only in this manner, otherwise you cease to exist"?

SD: There is no concept of eminent domain as far as the body is concerned. The body cannot be used as a marker for every service.

SD: The State has a legitimate interest in identifying a person, and so there could be a set of limited, narrowly tailored circumstances where you are required to give up fingerprints, such as for a passport or a driving license.

SD: ... or a criminal investigation.

SD: Personhood under the Indian Constitution flows from being alive, and not from registering oneself in a central database.

SD ends with Mahatma Gandhi on the Transvaal Ordinance. "This degrades free individuals."

SD begins his final summation of the case.

SD: What's at stake here? First, personal autonomy is at stake. Are we going to cede complete control of the body to the State?

SD: In a digital world, personal autonomy extends to protecting biometrics.

SD: The second point is constitutional trust. We have created the State, and now the State trusts us as unworthy unless we cede our biometerics. The Aadhaar program treats the entire nation as presumptively criminal.

SD: The third point is the rule of law. Look at how this project has been rolled out.
The fourth point is surveillance and privacy.

SD: Lastly, if this program is allowed to roll on unimpeded, think of the domination The State will have over the individual.

Shyam Divan closes the case.
Bench rises.
Kapil Sibal will argue after lunch.

Quick note to say that Shyam Divan and his office has been with the Aadhaar challenge since its origins in 2012, and has appeared in every hearing for the last six years.

Cheers.