Thread by @gautambhatia88

Aadhaar Day 29. Rakesh Dwivedi is continuing.

RD talks about the presumption of constitutionality, and how Courts should first make small repairs if they find that laws are defective, instead of striking it down.

RD reads out S 8 of the Aadhaar Act.

He says that sharing and use of information is strictly confined and limited to the authentication process.

RD says that Section 29 of the Aadhaar Act should also be accordingly limited to the authentication process, and as per Section 8, core biometric information can never be shared.

You can read the relevant sections of the Aadhaar Act here: advocatekhoj.com/library/bareac…

RD says that in order to avoid even the possibility of surveillance, the Court can give a narrow interpretation to Section 29, and limit sharing of information.

In response of Chandrachud J's questions about ensuring security at the back end, RD says that this can be done through technical specifications and through professional audits.

Chandrachud J points to Sections 8(2), 8(3) and 29. 8(2) says that the requesting entity shall obtain the consent of the individual before collecting identity information for the purposes of authentication. Then, it can be submitted for authentication to CIDR.

RD says that the information can be used only for authentication purposes.

RD now reads S 29 (sharing). He says that under S 29, all that can be shared is non-biometric data.

Chandrachud J says that the requesting entity will know the purpose of the authentication.

RD denies it. He says that the requesting entity will not know the purpose of the authentication.

Chandrachud J says that section 8(3) read with 29(3) makes it clear that it will know.

RD disagrees.

Chandrachud J says that 8(3) makes that clear. See: advocatekhoj.com/library/bareac…

RD says that if I go to Apollo, Apollo will not transmit why I have come - to buy medicine or to meet a doctor. The only information transmitted will be that the authentication is sought from Apollo.

RD says, suppose I go to the airport and have to authenticate at the gate. He says that the Airport Authority will not be telling the requesting entity where I'm going or what flight I'm taking.

Sikri J says that the problem is that S 29 gives a handle to share the information.

RD says that core biometrics cannot be shared.

Sikri J says that the uses of the authentication can be shared.

RD says that the only use is a yes or no response to a authentication request.

RD says that I have no other information.

Chandrachud J says that this argument may be valid qua the UIDAI, but not qua the requesting entity.

RD says that if the Court has that doubt, it can interpret the Act to exclude that possibility.

Sikri J asks why Section 8(3) is needed in that case.

Chandrachud J says, suppose Apollo is a requesting entity, or submitting information to a requesting entity. There will be a record of the fact that an individual has gone to a hospital and authenticated, say 122 times in 6

months. This is something that pharmaceutical companies and insurance companies can mine.

RD says that you don't need Aadhaar for this. You can just go to ten hospitals and find out.

Chandrachud J says that until we have a data protection law, this is a problem.

RD says that no data protection law can be as strong as the safeguards in the Aadhaar Act.

Chandrachud J says this is an exaggeration. He says, look at the EUGDPR, coming into force next year.

RD says that we don't need to copy. We can just see the control and punitive +

+ provisions in the Act.

RD says that, in life, you can never have a hundred percent assurance. A man in Kerala went to make a speech, and there he died. Even God can't give us hundred percent assurance.

RD says that none of the petitioners have pointed out what more we can do

Chandrachud J says that on RD's reading, 8(3) and 29(3) can be excised from the Act.

RD says that can be done, but in his submissions, it doesn't need to be cut, only clarified.

RD says the the design of the Act is not to aggregate information, and that the Court can give it an interpretation that prevents aggregation or data analysis.

Chandrachud J says that there are no limits to commercial ingenuity.

Sikri J says that the information about medical treatment will already be with the hospital, and that they may not need Aadhaar to get more information.

RD agrees. He says, let the petitioners show what Aadhaar is adding in terms of information already available.

Sikri J says that the only apprehension is the apprehension of misuse.

Chandrachud J says that there is a real apprehension is even elections can be manipulated thanks to data. He says that the task is to introduce safeguards that ensure that the Act achieves its purpose and +

+ is not an overreach.

RD says, don't bring Cambridge Analytica into this. He says that we have no learning algorithms like Google. He says that petitioners have tried to confuse the Court by talking about algorithms.

RD says that he has bought 50,000 rupees worth of books in the last four months to learn about algorithms, and that he still knows very little. But nonetheless, he repeats that UIDAI only has a matching algorithm, not a learning algorithm.

RD says that petitioners have created hyperphobia. This is not an atom bomb but just something that identifies me to myself.

RD says that petitioners have argued for a smart-card because smart-card is an entrenched vested interest in Europe, and if the Indian experiment succeeds, then they will be in trouble. The smart card lobby doesn't want Aadhaar to succeed. Google doesn't want Aadhaar to succeed.

Chandrachud J says that the concern is not so much with UIDAI, but with the interface with the world outside. He says controlling the UIDAI is easy. He says, nobody may be able to control the world outside.

RD repeats that there is no matching algorithm.

Shyam Divan has just walked out of the Court.

RD comes to Section 28 of the Act.

RD talks about Section 57. He says that it's a limited exercise. Nobody can be enrolled as an RE unless he shows that he needs to have authentication.

RD says, for example, if Dominos wants to become an RE, we will first ask them why they need it.

Chandrachud J asks what is the purpose of opening up the Aadhaar platforms to private players.

RD says that the public/private divide is changing. Even Reliance is entering into defense. Private parties are entering into Telecom, aviation etc

RD says that in any case, these private players are funded from banks, where we have deposited money. So whether private or public, we the people are paying.

RD says that private parties performing public functions can be brought under constitutional norms.

RD says that this is a debate for another day. Right now all that's necessary to know is that the private players are within the control of the Act.

Judges conferring about something.

RD says that the Petitioners have claimed that we are numbering human beings and drawn comparisons with Hitler. He says that Petitioners seem to think that the history of numbers began and ended with Hitler.

RD says that the whole of history is the history of numbers, and it began with India. He cites a book by George Ifra (sp?).

RD says that the proximity card to enter the Supreme Court has a number. He says that air tickets have a PNR number.

RD says that the problem with Hitler's numbers was that it was based on identity, but Aadhaar does not ask for identity. He says that even credit cards have numbers.

RD says that Stephen Hawking has written a book called God Made Integers, where he talks about mathematicians.

Chandrachud J asks whether RD bought this book after his 50000 rupee investment on algorithm books.

RD says that numbers are beautiful. He says he doesn't understand why petitioners have vehemently argued that "we are being numbered."

Chandrachud J asks how Aadhaar goes from being an entitlement under Section 3 to becoming a mandate.

RD says that the issue of linkage should be examined on a case to case basis.

RD says that if the Court feels that in any particular situation the Court feels that the government is going too far with linkage, it can strike that down, but that's not a ground to strike down the overarching Aadhaar Act.

RD says that the entire UIDAI has been built from money from the consolidated fund of India.

(Shyam Divan is back in Court)

RD says that the Aadhaar Act is people-centric on the one hand, and UIDAI-centric on the other.

RD says that these days biometric authentication is spreading everywhere. If a company wants to institute biometric attendance, it can approach UIDAI. But a chaiwalla or paanwalla has no reason to enter into a contract under Section 57.

Bench rises for lunch.

To resume at 2 30.

Cheers.