Thread by @gautambhatia88

Aadhaar Day 10, Afternoon Session. Kapil Sibal is discussing the national register of citizens. He says that there's no difficulty in connecting identity to status. However, my primary status is that of a citizen, not as an Aadhaar Card holder.

KS: The Aadhaar architecture is defective. But even if it was perfect, Aadhaar could not be made compulsory or mandatory.

KS discusses the doctrine of unconstitutional conditions. This doctrine holds that the State cannot make a benefit or privilege conditional upon an individual giving up their rights.

The doctrine of unconstitutional conditions was accepted in Indian law in 1974. Read the judgment here:indiankanoon.org/doc/703393/

KS says that when you make essential benefits conditional upon giving up rights, you place individuals between "a rock and a whirlpool."

KS reads out the judgment in In Re Kerala Education Bill, which also accepted this doctrine. Read it here: indiankanoon.org/doc/161666/

KS: The present members of society cannot surrender rights on behalf of future members of society, such as our children and grandchildren.

KS says that a condition that precludes you from enjoying a benefit on the basis of an unreasonable classification is void.
Chandrachud J says that if the government was to give you choice of two identities, can you refuse to give either.

Chandrachud J says that if your entitlement depends on who you are, then can't the government require proof on that count? Is it not a reasonable condition?
KS says that proof still has to be linked to what entitles you to that benefit in the first place, which is your status.

Chandrachud J says that even if entitlement is beyond dispute, there has to be minimal way of proving who you are.
KS says, but I can have different ways of proving that fact. There are various ways of establishing identity.

KS: Aadhaar doesn't establish my status. And I can prove my identity in other satisfactory ways.
Chandrachud J says that a condition is unconstitutional if it requires you to relinquish a constitutional right. He says that if the latter part is established, then why do you +

+ need anything further?
CJI says that KS's submission is that you can't be asked to barter or surrender one fundamental right in order to have access to another.
KS agrees.

Chandrachud J asks KS if his argument is that the constitutional violation lies in restricting the choice of identity to one.
KS says yes.
Chandrachud J says that a premise of the argument seems to be that everyone has at least one form of identity.

Chandrachud J says that if a government program is an enabler for people who have no identity, would that save the constitutionality?
KS says that even if true, it would only apply to those cases.

Chandrachud J says that in that case, the government should be able to prescribe and make compulsory one identity for those who have none.
KS says no, the government can prescribe a method by which such persons can get an identity.

KS points to the Aadhaar Act which requires pre-existing identities in order to get an Aadhaar, apart from the introducer provision.
KS says, the point of Aadhaar is not to grant identity to those who don't have it, but to authenticate identity.

Sorry, missed five minutes.

KS is still arguing the point of unconstitutional conditions. He says that a condition imposed on the basis of status is reasonable, but this is not one. He accepts that there can be a condition to prove my status, but on that, I have the right to prove it in a reasonable way.

KS quotes Julius Caesar. "Aadhaar is a colossus, and we are underlings."
Chandrachud J says: "your basic point is that a citizen must have a choice in deciding how to establish her identity."
KS says "yes, through a reasonable manner prescribed by law."

KS reads out a notification that makes Aadhaar compulsory for bonded labour rehabilitation schemes. He says "imagine the consequences."

Some exchange between KS and the AG on this.

KS reads out other notifications that make Aadhaar mandatory for child labour welfare schemes.

KS says that many of these schemes are meant for the most marginalised, and it is they who will be excluded. "If this is not a denial of fundamental rights, then what is?"

KS reads out the judgment in Minerva Mills v Union of India (link: indiankanoon.org/doc/1939993/)
Minerva Mills emphasised the idea of "purity of means", and said that you cannot achieve State goals by abrogating fundamental rights.

KS says that Aadhaar does not, as a matter of fact, stop pilferage or leakage. He reads out the judgment of the SC in PUCL v Union of India, which had cited the Wadhwa Committee Report to establish the multiple issues with the PDS system.

Sikri says that even if one reason for fraud is being taken care of through Aadhaar, then Aadhaar's failure to take care of other kinds of fraud will not necessarily make it unconstitutional.
KS says: it won't, but it will raise questions about proportionality. Our argument is +

+ that the scheme is disproportionate.
KS says that he is placing on record a compilation that will repudiate all the factual claims made by the State.

Sikri J says that all the other proofs of identity have been misused, like multiple passports. He says that maybe that's a reason for Aadhaar, to prevent multiple IDs.
KS says that people have multiple Aadhaars, and there's no way that the State can show that that cannot happen.

KS says that the more important point is that if I have multiple identities, then I have to be dealt with under law. Because some people are breaking the law, the State can't require everyone to get an Aadhaar.

Sikri J says that this is again a question of proportionality.
KS says yes.

KS sums up. He says that this is the most important case since Independence.
He says that this case is more important than ADM Jabalpur. ADM Jabalpur was a limited regime. Aadhaar is unlimited.

KS says: this judgment will decide the course that this country takes. Will we live in a country where there is choice - or do we live in a country where the State is the arbiter of choice.

KS asks the Bench to consider the gravity of this case when they decide.

KS closes.

Gopal Subramaniam is the next counsel for the Petitioners.

GS commences with the Supreme Court's privacy judgment. He says: at the core of the judgment was the idea of dignity.

GS says: The fundamental submission is that notwithstanding the advances of technology, the Constitution cannot be obfuscated.

GS says that there are existing forms of giving benefits that are consistent with the Constitution. He says that a crucial factor of dignity is that the most marginalised are not exposed as the most marginalised.

Chandrachud J says that social mobilisation is based on the assertion of status.
GS says he agrees completely, and the question is whether Aadhaar interferes with status.

GS says that the aim of the statute is not simply exclusion, but that it also treats data as property, and anticipates money-making on that data.

GS says that bringing in the whole population into an aggregated database is a very serious issue.

GS: there is a state of exception where fundamental rights can be suspended - but short of that fundamental rights cannot be suspended or bypassed.

GS: The intrusion by the State has to be as minimalistic as possible. That is the soul of the Constitution.

GS says that the very concept of "identification" carried a pejorative sense.

GS says that he will discuss the question of pre-existing forms of identity, before Aadhaar, and they were made. He says that Part IX of the Constitution is all about decentralisation.

GS says that Aadhaar "disintermediates" the State, that is, it erases accountability.

GS says that this is crucial for Article 14 of the Constitution. When you claim a violation of constitutional rights, it must be decided by a person, and not by a computer or an algorithm.

GS says that the soul of Aadhaar is "continuous authentication." He says that this privileges the digital person over the real person.

CJI says that GS's argument is that Aadhaar makes a person an un-person.
GS agrees
Bench rises.
To continue on Thursday.

Cheers.