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#Aadhaar (day 36) hearing will begin shortly. State will conclude it's arguments today.
Attorney General K.K Venugopal commences his submissions. Repeats that Article 110(1)(g) is a standalone provision. There can be a bill that does not relate to 110(1)(a)-(g) but is still covered independently under 110(1)(g)
AG: Therefore the Aadhaar bill did not have to to be passed by the Rajya Sabha. RS could only make recommendations.
CJI: Section 57 is an enabling provision that allows state legislature to introduce Aadhaar for various services. The state legislature may or may not introduce it as a money bill. It's nature will then be examined if it's challenged in a court of law.
AG cites Articles 122 ( Courts not to inquire into proceedings of the Parliament) and 255 of the Constitution in support of his money bill argument.
AG cites the case of Mohd. Saeed Siddiqui v. State of Uttar Pradesh.
AG is reading out the judgement of Siddiqui v. State of UP.
Next, he's reading from Yogendra Kumar Jaiswal v. State of Bihar.
AG is reading chapter V of the Aadhaar Act ( Grants, accounts, audits and annual report )
AG now wants to talk about Aadhaar telecom linking.
Says currently Aadhaar is not mandatory to obtain a new connection ,but there will be no chance of forgery and fraud if Aadhaar is linked to SIM card.
AG says Aadhaar was made optional as per the direction of the Supreme Court(SC had denied a few days ago that it had issued any direction to make Aadhaar mandatory for sim in the lokniti case), but it will only remain optional till the final disposal of the matter.
AG says they are recognizing the interim order passed in the lokniti foundation case, and hence making Aadhaar optional for the time being.
AG reiterates that no core biometrics data is shared under the Aadhaar Act. Reads out the offences and penalties laid down under the Aadhaar Act.
On the point of surveillance, AG says we cannot accuse a democratic govt of such conspiracy.
AG says that the state takes offense to the fact that words such as "electronic leash" and "concentration camps" were used.
Bench rises for lunch. Rejoinder will begin post lunch.
Senior advocate, Shyam Divan begins his submissions.
SD: Says first time in a democracy, something like CIDR has been implemented.
SC is at the vanguard of balancing human rights and new technologies.
SD: Cannot have a surveillance state in this democracy.
Identity of the person, date and time, and location are the three elements of surveillance.
On March 9, 2018, state filed an affidavit appending an expert report by Manindra Agarwal of IIT kanpur who is also a member of.. and architecture review board of Aadhaar along with the security review board.
SD: UIDAI's presentation report says that biometrics database is accessible by third party vendors like Morpho, Accenture, identity solutions and one more.
Breach of verification log leaks location of places where an individual did authentication.
SD: The report admits that tracking of location of a person is possible. Prof. Agarwal has admitted that last five years location data can be accessed with the verification log. Even without the verification log, current location can be tracked. UIDAI knows the location of... individual. Third parties can access the approximate location if the verification log is breached.
SD: Experts on both sides now agree that surveillance is possible.
It's not just a privacy issue, it's a limited government issue. How far does the coercive power of the state extend? Cannot extend to creating an infrastructure that is capable of tracking people.
SD: Can we have a law or system that sets up an authority that does not comport with our democracy?
I'm speaking about a rudimentary level of surveillance. I'm not even talking about commercial surveillance.
SD:Refers to slide 14 & 18 of UIDAI's slides on registered device. Device will have unique identifier for the purpose of full traceability and to detect fraud.
Strong audit and traceability for fraud detection- slide 18
This means that individuals can be traced using this device.
SD: State has created a structure of not just CIDR but AUAs and KUAs where all information is being tracked including location.
In terms of power and control, the existence of a body like UIDAI is beyond my wildest imagination.
SD: The Maninder Agarwal affidavit is a tipping point in this case. He's careful and says that there are laws to protect us.
SC cannot permit something so deeply flawed to function in our country.
SD: Is this a case of the emperor who had no clothes?
On the point of balancing, I would submit that this is an impairment of Part III of the Constitution.
This is a moment in time to take a firm stance.
J. Chandrachud; There's an inexorable march of technology. What are the kind of safeguards that we should take while balancing these rights is something we have to consider.
J. Chandrachud: Not like there's quantitative lack of food in our country. The problem is that people can't access that food. It is the duty of the State to look into this aspect also.
SD: Choice and option is important in a democracy.
SD reveals jokingly that Mr. Zoheb Hossain also does not have an aadhaar.
SD goes through the list of questions put forth by the petitioners to UIDAI.
SD: UIDAI in their answer have said that they do not take responsibility for correct/incorrect identification. They only provide a matching system.
It's a self certification/ declaration system.
Please consider this in the context of opening and operating bank account.
SD:UIDAI takes no responsibility for correct name, address, date of birth
Please consider if this meets minimum standard of rationality.
SD: UIDAI hasn't answered how many authentication rejections have taken place. If you're successful of performing five authentications in a year, it's considered hundred percent successful.
SD: UIDAI was asked if they verify if illegal immigrants are given Aadhaar. As a 2013 SC order said that illegal immigrants should not get aadhaar.
Mr. Divan goes through all the other questions asked by the petitioners.
Bench rises for the day. SD says that he'll try to finish by Tuesday lunch.
Rejoinder will finish by Wednesday.
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