Thread by @SFLCin

#Aadhaar final hearing- Day 18: Hearing to resume soon. Mr. K V Viswanathan will conclude his arguments today following which Mr. Anand Grover will commence his arguments.

KVV: Starts with explaining that govt. has failed to show how Aadhaar has resulted in savings. Explains the kinds of frauds possible in PDS scheme- eligibility, quantity and quality fraud.

KVV: Says that Aadhaar based authentication, at best, helps only in identity fraud and none others.

KVV: Reads the case of S & Marper explaining how the statistics shown by the govt. regarding savings have been misleading.

KVV: Says that ABBA doesn't roll out the middle man. It only puts the machine in between.

KVV: Says that the studies on which the govt has relied for savings are old studies, some of which were conducted even before ABBA was in place.

KVV: Says that the govt. has failed to show that the savings and better targetting are of magnitude justifying the infringement of rights. Says it is disproportionate. Reads out Selvi case in this context.

KVV: Says that the State failed to take into consideration less- invasive or alternate measures which could achieve the same purpose.

KVV: Reads out the court's assesment in the ECHR decision of Peck v. UK. wherein examination of alternative means to achieve same object was mandatory.

KVV: Says that in present case, there were less invasive alternate methods available eg. Smart cards and social audits under NFSA, food coupons, etc. However the State didn't examine such alternatives, thus failing to discharge their burden u/a 21.

KVV: Says that Aadhaar Act was drafted on the premise that privacy is not a fundamental right. It wouldn't have have drafted this way, had it been enacted after the Puttaswamy judgment.

KVV: Reads the case of Belfast City Council v. Miss Behavin' Ltd.
Says that the legislature didn't try to strike balance between the competing rights.

Sikri J: Says that privacy is not a fundamental right was the argument of State in the court. Asks if it can be presumed that even the legislature did not have it in mind while enacting the statute.

KVV: Says that the provisions of the statute do not show that privacy was considered at all. Also, the govt. made this contention while defending the said statute in the court.

KVV: Refers to the directive by DoT using Aadhaar for mobile verification. Says that order in Lokniti foundation case never gave an explicit direction to use Aadhaar.
Says that there's no contract or law. And a contract b/w DoT and Licensee cannot be used to impose Aadhaar on me.

KVV concludes his arguments.

Senior Advocate Anand Grover commences his arguments.

Says that he will show:
1. The whole architecture of Aadhaar is beyond the Act. Act is only one small part of it.
2. No security in place to ensure that the data remains secure and private. Allows data to move outside CIDR.
3. Serious breach of privacy.
Thus, project has to stop.

Note: Anand Grover is appearing on behalf of petitioners in the matter of Mathew Thomas v. Union of India.

AG submits that under the Act unauthorised and excessive data is being collected.
Further points out towards illegal sharing of Aadhaar data- with various State Residents Data Hub.

AG- Says that CIDR is protected but data is distributed at all sorts of locations which are not protected.

AG: Refers to the UK national ID project which was discarded.
Says that govt. had claimed that all the data in SRDH had been destroyed. That cannot be done just be deleting it from one place. It is a complex process.

AG: Now comes to risks. Gives an example that authentications done in case of a tuberculosis control programme can disclose health info of a group of individuals within that region.

AG: Says that Section 59 doesn't save any action which is ultra vires the Aadhaar Act.

AG: Says that one necessarily cannot have a unique identity. Gives example that a thumbprint can match with one person in a million. By using a thumb print and the iris both, one can narrow down but still, it will not be unique.

AG: Now comes to the Parliamentary Standing Committee' observations. Points out the defects that they had observed with respect to the use of biometrics.

AG: Says that it was assumed that the iris cannot be changed. However, a study shows that within three years, quality of iris changes.

AG: Refers to their own admission in a case wherein govt. had said that iris will result in a huge number of false matches.
Further refers to a study by Dr. Hans Varghese Mathews which, for 1.2 billion of population, stated a deduplication ratio of 1/121- far too high.

AG: Says that biometrics results in exclusion which is violative of Art. 21.

AG: Now comes to the contracts of UIDAI with foreign agencies for multi-modal biometric systems rendering it 'insecure ab initio'.
Says that these agencies had access to everything.

AG: Reads the access provision- clause 3 of BSP agreement which says that these agencies shall process all personal data in accordance with the law.

AG: Says that the Act specifies that no one else is supposed to have all these information. However, these agencies had access to all the data.

AG: Comes to his next submission. Says that there's a complete failure to ensure the safety of data which is required under the law.

AG: Says that because of the inherent personal nature of data, State has to ensure its protection. If it can't ensure it, it cannot take such data.

AG: Says that fingerprints can be duplicated very easily. Gives several examples where it has taken place.

AG: Says that UIDAI has not stopped accepting authentication requests from unregistered devices. Highlights the level of callousness.

AG: Says that all security measures are ad hoc. As when problem arises, measures are devised to cover it.

Bench rises for lunch. To continue at 2:30 pm. Anand Grover to conclude his submissions post lunch.

Bench reassembles after lunch. Anand Grover to continue.

Will be using GA as abbreviation for Anand Grover.

GA: Takes the court through the Aadhaar Data Security Regulations.

GA: Says that he has challenged various Regulations on the basis of excessive delegations.

Asks that once interim order is passed, can the executive- by a notification override the orders?
Refers to various notifications u/s 7.

GA: Refers to the case State of Bihar v. Rani Somnath Kumari that all persons are duty bound to follow the orders of the court once it has been passed for so long as it stands.

GA: Now expands on the foreign decisions.

Internet issues.

GA: Summarises that Aadhaar project is larger than the Aadhaar Act.
UIDAI has facilitated data transfer in contravention of the Act.

GA: Further says that no security to the data of the individuals being collected.
Submits that Aadhaar project and section 7 has to go.
Concludes his submissions.

Senior Advocate Meenakshi Arora commences her arguments on surveillance.

MA: Says that Puttaswamy judgment recognises that wherever there is data collection, it can result in surveillance.
Next submission is on dignity.
Last submission: proportionality test and violation of fundamental rights.

MA: First submission. Refers to para 300 of Puttaswamy judgment.
Sikri J says these things have already been discussed in details.
MA says she will present only a very nuanced submission on the matter.

MA: Talks about Mass surveillance.
Says from Marper judgment, that it recognises that it is not use of surveillance but also the apprehension of surveillance that can result in chilling effect which needs to be taken into consideration. Discusses S & Marper case.

Sikri J. says that it has been argued.
MA moves on to next submission.
Discusses the ECHR case of Szabo and Vissy v. Hungary.

MA: Says that in the cloak of mass surveillance, the democracy can be destroyed rather than being protected. This will result in the chilling effect due to 360° view on the individuals at all times.

CJI wants petitioners to finish the arguments by afternoon Tuesday. Meenakshi Arora will continue with her submissions followed by Mr. Sajan Poovayya.

Court rises for the day. To continue on 20th March, 2018.

Towards the end of the arguments, a person, who is a party in person, presented his case before the court stating that due to the non- matching of biometrics, his father couldn't prove himself alive and thus, couldn't receive his pension. Since, it happened during demonization...

... the father did not have enough money and therefore, died. This petitioner requested the court for the abolition of Aadhaar Act.

*demonitization