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Gautam Bhatia @gautambhatia88
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Aadhaar Day 8. Bench assembles. Kapil Sibal to continue.
Kapil Sibal says that just this morning there is a report about how in old age homes across the country, people are being denied pension because of Aadhaar. He says "this is the reality of India."
Sikri J says that government has claimed that 1.2 billion people have been enrolled, which means that only ten crores are left. He asks if there are so many problems, how have so many people been enrolled.
Kapil Sibal says that there's a difference between getting enrolled and having to authenticate each time.
Bhushan J says that these kinds of problems may not be a ground for holding a statute unconstitutional.
Kapil Sibal replies that the point is exclusion.
Chandrachud J says that exclusion may be because of infrastructure problems or it might be irremediable, like because of old age. He says that on the first point, government may upgrade.
Kapil Sibal says that the question is that if you're going to upgrade, what happens in the meantime.
ASG Tushar Mehta stands up and says that nobody has been excluded because of lack of Aadhaar.
Court asks him to explain. Rakesh Dwivedi stands up and says that according to Section 7 of the Aadhaar Act, if there is a problem with authentication, you can just show the card and the number.
He says that circulars have been issued saying that if there is authentication +
+ failure, nobody should be denied. He also points to Sections 4 and 31, and says that if biometric information changes, the Aadhaar holder can ask the UIDAI to update the information.
Rakesh Dwivedi points to the regulations that say that residents who are unable to provide biometric information, an exception will be made for them.
Rakesh Dwivedi says that the law does not permit any exclusion either at the enrolment stage or at the authentication stage.
ASG Tushar Mehta reads out a cabinet release that says that provisions have been made to handle exceptions.
ASG Tushar Mehta says that arrangements have been made in all blocks and talukas to have alternatives available for exceptional cases.
Chandrachud J says that this actually indicates a countrywide problem. And the question is whether until mechanisms are placed, nobody should be excluded.
ASG says that these mechanisms are already in place.
ASG says that 96% of the people are already enrolled.
Sikri J says that many people may not be knowing that there is a provision that you can update your data.
ASG says that they have taken care of all that. He says that Aadhaar is citizen friendly and all problems have been +
+ taken care of. He repeats that nobody is being excluded for lack of Aadhaar.
Kapil Sibal resumes. He says that there are serious problems on the ground, and you can't answer that simply by reading out the provisions.
He says that this Court is meant to protect precisely those people.
The AG says that if biometrics and iris scans fail, you are entitled to produce any alternative ID. He says that there is no question of exclusion.
Chandrachud J asks whether the Act provides for situations where authentication fails. Rakesh Dwivedi says Section 7 allows for that. KS disagrees.
KS resumes his argument. He points to Section 4(3) of the Aadhaar Act.
Chandrachud J says that Section 7 contemplates three possibilities - authentication, proof of enrolment, and proof of application. He says that Section 4(3) only applies to the first situation.
Sikri J says that under Section 7, proof being furnished of having an Aadhaar will be sufficient.
KS says, on that interpretation, people will refuse to authenticate.
Sikri J says that we can interpret the section in this way: if authentication fails, then +
+ you can show proof of enrolment.
KS says that that would amount to adding the word "or" in the section.
Chandrachud J says that we can interpret the Act in a way to ensure that there is no exclusion.
Chandrachud J says that authentication is at the heart of the statute.
KS comes to Regulation 26, which talks about Registrars adhering to all regulations.
He says that the only consequence for breach is a fine, which came in 2016.
Sikri J jokingly says that Kapil Sibal should perhaps not make this argument. General laughter.
Kapil Sibal discusses the UK biometeric identity project, which was scrapped in 2010.
The UK Act provided for a national identity register.
A regulatory impact assessment claimed that the UK bill would achieve less illegal migration, enhance ability to fight terrorism, and prevent identity fraud for welfare. He says that these are the exact arguments that the government is making today.
The UK govt insisted that the bill was to ensure that everyone had one ID, and that it would not erode Civil liberties.
The opposition Conservative party opposed it on the ground that it was fundamentally changing the relationship between individual and State.
The Conservative Party argued that a central database of information was perilous to civil liberties.
KS reads out the objections of David Davis MP, and various proposals to ensure security of data and individual consent.
KS reads out the UK bill introduced to repeal the act, which stated that the national identity card represents the worst of government, it is intrusive and bullying, and does not achieve its objectives. "Government is a servant of the people, not the master."
This was stated by Theresa May, then home secretary and now Prime Minister.
Kapil Sibal says that this is a recognition of the pitfalls.
KS points to the distinction between social security cards and Aadhaar
KS says he could understand it if you had smart cards and if biometrics were stored on the card itself. He says that Aadhaar is "identity+".
Chandrachud J asks what is the "plus". KS says "metadata". Chandrachud J asks if there's anything else. KS says "that's it, and that's serious."
KS says that Sections 3, 4, 8 and 57 of the Aadhaar Act are at the heart of the statute. Under 57, you can extend Aadhaar to all other non-welfare services.
KS: Section 7 is not key to the Act. If it was not there, the government could have used Section 57 and achieved the same goal by amending the Food Security Act.
KS: Section 7 authorises the government to say that Aadhaar can be the only way to get subsidies.
KS: "My entitlements should depend on my status, not on my identity. I might be a pensioner with a pension card issued by the government, but the government can still deny me."
KS: All proofs of identity, which are otherwise acceptable, are excluded by the Act.
Sikri J observes that those alternative forms are acceptable even at the time of enrolment.
KS: Yes, exactly. Acceptable for enrolment but not for identification. What's the basis for this?
KS says that why should anyone know, for example, where and when I open a bank account. The only ground is national security, but there's no link between Aadhaar and that.
Chandrachud J says that the Constitution itself postulates multiple identities. Gender, status, religion. He says that the Aadhaar Act doesn't speak of identity in that sense.
Chandrachud J asks whether the constitutional sense of a plurality of identities is relevant to identity in the sense that Aadhaar envisions identity.
KS says that the link is that the Constitution allows me to prove my identity in a way that Aadhaar prohibits me.
KS says that Article 21 of the Constitution guarantees choice, and Aadhaar takes it away.
Chandrachud J says that could the State not argue that Aadhaar only asks you to prove your person, not your identity.
KS says that there should be a choice in exactly that.
KS talks about Israel, which has biometric smart cards. Israeli law allows biometric identification and authentication, and the existence of a database. The database doesn't include identifying information.
KS says that the smart ID card allows users to identify themselves for services and benefits if they wish to do so. He says this last bit shows the voluntary character.
KS sums up: yes, we can have an ID card. But authentication should be optional, data should be on the card, there should be no data, and every citizens should have the right to alternatives.
Kapil Sibal says he will conclude on Tuesday. Bench rises.
To continue on Tuesday. (the court is hearing the Ayodhya case in the afternoon.)
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