Thread by @prasanna_s

#Aadhaar hearing. Gopal Subramanium, Sr. Advocate resumes arguments for petitioners. Begins by saying the Aadhaar Act is unconstitutional.

GS: After puttaswamy judgment read with NALSA and Subramaniam Swamy (defamation case) judgments, it is now clear article 21 includes within its sweep, dignity.

GS: It has been held that when it comes to individual rights v state concerns, it is the former that has primacy.

State action needs to be tested for substantive and procedural due process.

Art. 14 is not only about nondiscrimination.

Act has no legitimate aim.

Legitimacy of aim needs to be both for discernible ends..but also means.

Act suffers from excessive delegation.

Act cannot retrospectively validate abrogation of FRs.

Means employed in the statute because biometrics itself is flawed. And algorithmic behavior is itself...

...irrational and beyond UIDAI control.

Theory of potential harm: overwhelming harm is shown, standards of scrutiny much higher and the Act does not stand scrutiny.

GS says these are his propositions he is going to argue today.

Begins saying he is going to address the questions of CJI as of last hearing.

Virtual person whether reduces real personhood. That is the question he is now addressing.

Negation of the existential identity through an algorithmic process without human accountability and no reference to justice is clearly unjust. Justice is the queen of all virtues.

GS: Inability to access justice is an overarching theme in this Act.

GS: Mockery of federalism and unconstitutional centralisation of power is another limb of his argument.

(GS is in full flow and the tweets here clearly don't do justice to the discourse that he is giving to the Court.)

GS: Act is unconstitutional irrespective of the 50's and 60s standard ( In Re Delhi Laws Act and Amwar ali Sarkar) or the 70s standard (Cooper and Keshavananda and Menaka) or through modern Puttaswamy standards, this Act fails the reasonableness test.

GS: Refers to DYC question the other day about mobilisation. Says this Act impairs people from mobilising and constitutes an invasion.

GS then says the ability to negate the personhood not merely causes civil death. But constitutional death. Which is not possible!

GS: Says the Act's contemplation of 'ubiquity' , playing god so to speak, is contrary to a constitutional goal of selfactualisation for everyone ( refers to CJI's judgment in Su.Swamy case).

GS: Rights and existence or entitlement cannot be subject to the vicissitudes of probability. Constitution guarantees againdt vicissitudes. Does not enable them!

GS: Man (meaning person) transcends algorithm. Cannot br enmeshed inside it.

GS: Even assuming a benevolent state, it cannot guarantee the benevelonce of an algorithm they do not and cannot control!

GS: therefore the project is archiecturally unconstitutional.

GS: All of the points taken together will have to be looked at cumulatively.

GS: Complements Divan for establishing the potentiality of surveillance. Says that very possibility restricts the citizen and that it is per se a violation.

GS: The State demanding disclosure of status itself is demeaning and contrary to affirmative duties of the State.

GS: Every child is required an aadhaar to get a birth certificate. State is treating people like they are a flock of sheep. (Comments even a flock of sheep requires someone more transcendental to lead! DYC J smiles)

GS taking through Puttaswamy judgment. Says dignity is a golden thread that runs between 14 19 and 21.

GS: Reads out Puttaswamy judgment beginning how privacy is relevant in a digital world and how to emphasise the constitutional value privacy.

GS: Silos of information including human relations cannot be centrally aggregated.

GS: Privacy is concomitant to the right to control personality. (As held in the DYC J judgment of Puttaswamy)

GS: The survival of existential identity or transactional identity is protected as an inalienable right under the Constitution.

GS: Exclusion in constitutional parlance is discrimination. Any Act that leads to discrimination even with the best of intentions will have to go!

GS: The very attempt to homogenise identity is an anathema to the constitution.

GS: Our constitution includes the best of two schools of conception of human rights. The Dworkin school of protected interests as well as the Joseph Raz school of excluded reason.

GS: Reads the portion of Puttaswamy judgment that reaffirms Justice Lahoti's judgment in Canara Bank case.

GS: Emphasises informational privacy in dealing with Canara bank.

GS: Even for apriori state interests such as Income Tax or NDPS Act, this Court had construed such statutes strictly.

GS: Identification of citizen through a number is completely destructive of dignity.

(I am doing such a poor job of selecting his utterances to be tweeted out). Absolutely need to support @IJaising in her fight for livre transmission of Court proceedings.

GS: How does a man plead a case against the opacity of technology. What indignity is this? This not a mere violation of a facet of Article 14. It is making a mockery of it.

Sikri J comments that the interpretation given by GS is his improvisation. GS does not disagree but says reading all judgments together right from Anwar Ali Sarkar, all Constitutional principles and virtues are contained in Article 14.

GS: Reads pesikaka case and shows how constitutional rights cannot be waived. And consent has little use here..particularly when noone can be informed fully of the workings of the algorithm.

(Beautifully sums up how the very act of dispassionate, mandatory and homogenous identification is destructive of dignity)

GS then refers to the to German Constitutional Court decisions in Microcensus and Census cases that struck down legislations because of invasion of privacy.

Court rises. To continue tomorrow. No Constitution bench sitting this afternoon.