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Gautam Bhatia @gautambhatia88
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Aadhaar Day 37.

Shyam Divan continues his rejoinder.

SD talks about how inorganic seeding is happening under Aadhaar.
SD points out that the security at the AUA and KUA level is compromised, no matter how secure the CIDR is.

SD says that if there are nine failures and one success, UIDAI treats it as 100% success. And on a follow up question, the CEO has declined to answer.
SD: "It seems that UIDAI's idea of candour is a little different from ours."
SD now talks about the pre-Aadhaar Act regime. He says that UIDAI collected the biometrics of a 100 crore without statutory or other written authority.
SD says that this goes to the core of the rule of law. We are not living under a monarch, where you can do these things with a gesture.
SD says that there was no valid contractual relationship between the UIDAI and the agents.
SD says that the UIDAI has admitted that it does no verification at the stage of enrolment and takes no responsibility for the same.
SD says that UIDAI has admitted that the AUAs can store biometrics. And this was found by auditors, who has to force them to remove it.
SD: UIDAI only marches. It takes no responsibility for actual identification.
*matches
SD: Think of it this way. From the citizen's perspective there are two towers. An enrollment Tower and an authentication Tower. In this ecology system created by the statute, location, date/time and purpose are all known. This is 100% surveillance.
SD: The discretion to actually use exception mechanisms if authentication fails us with the distributor. So you're putting the citizen at the mercy of that person on the ground.
SD: Over time as Aadhaar authenticating becomes ubiquitous, tracking and profiling will become more comprehensive.

SD: Contrary to what Rakesh Dwivedi argued, authentication is not just one time.
SD has prepared an illustrative chart showing an individual's authentication log over three days. He hands it over to the Court.
SD has divided the log into activities that are undertaken once in a lifetime, one a year, monthly, and frequently.
In response to a question from Bhushan J, SD clarifies that this log is hypothetical and the purpose is to show how much data is collected.
SD says that the CEO UIDAI has provided his own log, but he would prefer not to go into that, since it may cause embarrassment.
SD comes to the ID4A, the World Bank report that was cited by the AG.

SD refers to the list of AUAs and KUAs, which are presently using Aadhaar authentication, and all of this will come into the log.
SD says that the World Bank's report has been relied on extensively by the AG (Identification for Development). SD says that if you look at page 3, para 2 which says that the WB has partnered with Accenture.

SD: I wonder whether that name rings a bell.
SD hands over a document to the Court. It is a press release from Accenture from 2010 which says that Accenture has been selected to facilitate the UIDAI's work.

SD says that this is not a bad thing. But it is nothing more than a sales pitch.
SD says that on this Report the High Level Committee includes Nilekani, who was the chairperson of UIDAI.

SD repeats that there is nothing wrong with this, but that the Court should keep this in mind when deciding how much weight to give this report.
SD now comes to S 59 of the Aadhaar Act, which attempts to validate all actions before the Aadhaar Act was passed.
SD says that even if this is a successful validating clause, it can't validate actions not done by the central government, and can't validate actions that were even ultra vires the notification. The notification made no mention of biometrics. So biometric collection before +
+ Act can't be validated.

SD discusses the judgment of West Ramnad. Read it here:

indiankanoon.org/doc/82588/
SD says that even if the notification was a parliamentary statute, unless it specifically mentioned biometrics, collection would be illegal. You can't have collection of something as invasive as biometrics without express authority.
Chandrachud J asks what would be the consequences if Mr Divan is right.

SD says that if this submission is accepted, all enrolments prior to the Act will have to go.
SD says that, as a departure, even these days, there is no real counseling. He takes the example of having had to get his daughter an Aadhaar because CBSE was insistent on it. "I was prudent enough not to file a writ for this."
SD comes to Section 7. He says there are 144 notifications that cover 252 schemes.

SD: First, schemes that apply to children should be excluded.

Secondly, exclude schemes that are based on competitions etc.

Thirdly, exclude schemes that have to do with rehabilitation.
SD: Fourthly, matters of food and health should be excluded.

Chandrachud J says that what principle should be evolved.

SD talks about the affidavit filed by Reetika Khera on the issue of exclusion.

Chandrachud J asks if S7 can be interpreted in a way that prevents exclusion
Chandrachud J asks whether there is any principled interpetation of words like subsidies, benefits and services that would prevent its mindless expansion.
SD takes the example of a lawyer who was in a coma, and the bank threatened to cut off her pension.

Chandrachud J says that there is no question that this is an issue and that it has to be addressed.
SD says that human rights law has a principle of non-retrogression.
Bench rises for lunch.
To continue at 2 30.
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