Thread by @SFLCin

#Aadhaar final hearing- Day 10:
Hearing resumes. Kapil Sibal to continue with his arguments.

KS: Reads out the definition and purpose of biometric database.

KS: These definitions are from the national ID law of Israel. Points out the voluntary nature of the ID cards handed to the residents.

KS: Focuses on the consent in Israel's ID law. Also points out that the biometrics are to be used only for the purpose they were collected. Further, access to the database will also be restricted to a particular purpose. No provision for metadata in their law.

KS: Now refers to Aadhaar Act. Says it is mandatory and for lifetime.
Consent is illusory.

KS: Says can only use the database for purpose authorised by law. Points out how the purpose of 'national security' is misused in India. Some NGOs are targetted for national security.

KS: Points out regulation that says Aadhaar can be deactivated for national security purposes.

KS: Comes to his first proposition- Information is power.

KS: Refers to the puttaswamy judgment which observed that information is knowledge. Reads out relevant paragraph on the power of information and knowledge.

KS: Reads excerpts from Harvard Business Review which talks about WhatsApp acquisition by Facebook for a very high valuation. Points out why are all these services so highly valued-because of the information they provide.

KS: Now reads the third paragraph of the same chapter. Refers to the power of networks. Gives examples of Uber and other services.

KS: Comes back to Puttaswamy judgment. Reads the now famous quote that Airbnb, Uber, etc own nothing.

KS: Says that these services have information which is scattered and not connected. Information being aggregated poses threat. Says it was also noted in the puttaswamy judgment. In silos, this information is inconsequential. Aggregated, it provides a picture of personality.

KS: Reads paragraph 111 of Puttaswamy judgment. Says that we can't argue that State cannot insist for national ID. But we can ensure that my ID is not in public, not in a centralised database and that when I am transacting with a person, the ID can be established.

KS: Says that on one hand we have public interest, on the other we have personal information in public domain. Gives an example that when I am travelling, it has nothing to do with public interest.

KS: Gives the example of the woman who had to deliver a baby outside the hospital for want of Aadhaar. Says hospital/health information is not public interest.

KS: Says that State cannot choose how I prove my citizenship, only I can. And nobody can deny that.

KS: Now reads para 311 of the privacy judgment.

KS: Now moves on to his next argument. Points out the voluntary nature provided in section 3 of Aadhaar Act but says that it is actually mandatory.

KS: Reads out section 32. Says log of such information is created and stored everytime a transaction is authenticated. However, the purpose of the authentication will not be known.

KS: Reads out regulation 26. Points out that metadata is also collected and stored.

KS: Reads out Section 57. Says that even in the absence of this section, some other Act could have provided for the use of Aadhaar for other purposes. However, this section brings out the true intent of the Act to establish it as an exclusive proof of identification for...

... purposes other than the ones stated in the object.

KS: Says that consent is for authentication. But the law requires to get the entitlement only through Aadhaar. Then, what's the purpose of obtaining consent?

KS: Now moves to his third submission on concentration of information in a single entity.

KS: Says such a concentration gives enormous power to the entity. Reads out parts of puttaswamy judgment on this.

KS: Points out that the Act also contains provision for Audits. Says that the respondents should provide the reports of the audits that have been done.

KS: Moves on to his next submission on proportionality.

KS: Elaborates on when can a court look into the proportionality of a statute.
Points out that for an act to be proportional, it has to be seen that: 1. What are your objectives and 2. If your policy is the least restrictive way to achieve those objectives.

KS: Says that in the current case, there's no nexus with the entitlement. It is violative of this doctrine.

Sikri J. Refers to 'culture of justification' in South Africa. A brief discussion on that.

KS: Says that the very concept of Aadhaar is inconsistent with the doctrine of proportionality. Points out various provisions under Aadhaar Act which confer wide powers on the authority.

KS: Points out that the State couldn't stop the pilferage of food grains, it now has to be given personal data. How can it be trusted with the security of that data?

KS: Reads on from his submissions that the purpose of Aadhaar Act was to provide for subsidies, benefits expenditure of whose was incurred from Consolidated Fund of India. Asks whether the whole expenditure has to be incurred from CFI or even the part?How is it to be interpreted?

KS: Says that is it my status from which the entitlements are to flow. Further says that are several entitlements which are available to non-residents. The state cannot deny benefits to anyone only for the want of a certain proof of identity.

KS. Says that most of the entitlements flow from part III of the Constitution. Says that denial of those entitlement for want of a particular proof of identification is denial of those fundamental rights.

KS: Says that this procedure doesn't meet the test of either Article 14 or of Article 21.

KS: Now moves on to the next submission.

KS: Reads para 150 of the puttaswamy judgment in context of making people part with their biometrics for availing their entitlements.

KS: Says that my right to livelihood is protected by the Constitution. Imposing a condition to exercise that right amounts to violating that fundamental right.

KS: Reads on a judgment delivered by Justice Sutherland on imposing a restriction to enjoy constitutional rights.

Bench rises for lunch. To continue at 2:30 pm.

Bench reassembles post lunch. Kapil Sibal to continue with his arguments.

KS: Refers to Article 5 of the Constitution on citizenship. Says that in case a citizen doesn't have Aadhaar, his rights to entitlements as a citizen will be abrogated.

KS: Says that the moment you impose a condition, you're denying a citizen of his rights. No defence can be taken from state like infrastructure is not in place.

KS: Refers to Section 14A in Citizenship Act regarding issue of national identity card. Says that it relates to a person's citizenship. Nobody can object to it. Why do we need Aadhaar then?

KS: Says that identity has an umbilical cord status as a citizen. That's fine. But my primary identity is that of a citizen not an Aadhaar card holder.

KS: Says that Aadhaar cannot be made mandatory. Further reads the opinion of Justice Das in Re Kerala Education Bill.

KS: Says that you are surrendering the rights of the future members like children which cannot be accepted. This cannot be done under the Constitution.

KS: Says that in case an individual refuses to take Aadhaar, he will be denied entitlements. This itself is violative of Article 14 of the Constitution.

Chandrachud J.: Questions on reasonable condition of the govt. cant impose a proof of identity?
KS: My status relates to my entitlement.
DYC J. There has to be some proof of that status.

KS: Says that Aadhaar doesn't establish the status. Says that as long as I can prove my identity for the purpose of that entitlement by any method, I am entitled to the benefits.

CJI: No statute can barter to give you your fundamental right in return of another fundamental rights.

DYC J.: Says that submission of KS is that giving just one option of proving identity is unconstitutional. He further points out that this argument supposes that every person would have atleast one form of identity with him. He asks if it would be correct to assume that.

KS: Says that in case an individual does not have an identity, the Govt. can provide a procedure to ensure the person has an identity.
DYC J. Says that it all boils down to choice.
KS agrees.

Some tweets missed due to Internet issues.

KS: Refers to multiple schemes including bonded labour scheme, national child labour scheme, national child labour project scheme, etc. which mandatorily require production of Aadhaar. Says that it is a denial of fundamental rights.

KS: Now on his next submission on pilferage of food grains.

KS: Says that this is not a constitutionally valid scheme. Points out exclusion of deserving persons and inclusion of non deserving persons.

Replies to Sikri J. question that many people have multiple passports or other IDs.
KS says that people also have multiple Aadhaar. Further, such people would be dealt as per law but it doesn't justify the State making only one ID mandatory.

Kapil Sibal concludes.

Gopal Subramaniam commences his arguments.

GS: Fundamental submission is that despite the advances in technology, Constitution has to be abided by.

GS: Refers to privacy judgment. Says that it recognised that there should be no interference with the most fundamental rights.

GS: Says that privacy is a state of being. Can't be described in a single word. Says that the intrusion in that right has to be minimalistic.

GS: Says that it is important to ascertain the true purpose of this database. Says that alternative methods to fulfill the purpose also exists. Says that this Act is a danger and attacks at the accountability of the State.

GS: Says that Aadhaar has the effect of disintermediating the State.

Bench rises for the day. To continue on Thursday, 15 February, 2018.