Thread by @gautambhatia88

Aadhaar Day 37, Session 2.

Shyam Divan continues his rejoinder.

He takes the Court through some of the schemes under Section 7. These include the Sarva Shiksha Abhiyaan and Mid-Day Meal schemes.

SD says that there is no question of subjecting children to this.

SD says that the second class of schemes is involving merit, such as painting and essay competitions for schoolchildren, for which Aadhaar has been made mandatory.

SD says that this goes way beyond any conception of proportionality.

SD says that the third category is schemes for rehabilitation that involve stigma, such as bonded labour and trafficking victims. SD asks how Aadhaar can be made mandatory for this most vulnerable class of people.

Sikri J says that under the garb of distributing these schemes, it should not be the case that undeserving or fraudulent people get benefits.

Sikri J says that he understands there are issues of exclusion, but there's also an issue of fraud, and how do you address that issue.

SD says that there must be a reasonable alternative way of identification that is allowed to an individual.

SD says that for health-based schemes, I may not want to reveal that I have tuberculosis.

SD says that there is a scheme called the Jiyo Parsi Scheme to increase the number of Parsis, and even for that they have made Aadhaar mandatory.

SD says he will sum up. He says that if you look at Aadhaar as a whole, it is increasing the coercive power of the State against the individual.

SD says that personal autonomy extends to controlling where I have to put my fingertips. Minimal requirements for specialised purposes such as passport, but this is overarching. SD repeats that I can change my password, but not my fingerprints.

SD concludes his arguments on Section 7. He comes to the violation of the interim orders of the Court, which he says have been repeatedly violated by the government.

SD says that the magic of Articles 226 and 227 lies in the fact that bureaucrats and legislators know that there is an independent court that will review their actions for constitutionality. Quotes Seervai.

SD comes to the issue of money bill. He says that the Aadhaar Act has a huge impact on human rights. The Constitution has a very intricate scheme of defences for protecting rights. The last line of defense is the Court. But there are other concentric defences and bulwarks.

SD says that there are two crucial bulwarks. The first is the Rajya Sabha. In the Aadhaar Act that protection has been lost.

SD says that the second important bulwark is Article 111 of the Constitution (assent to bills). Read it here: indiankanoon.org/doc/158646/

SD says that this protection (Presidential review and return of bills for reconsideration) has also been done away with by labeling Aadhaar a money bill.

SD says that this Court has always been the champion of human rights.

Chandrachud J refers to his judgment on Ordinances, which used similar logic to read the Ordinances provision narrowly.

SD comes to the issue of demographic information. He says that the other side has belittled the importance of demographic information. But in many situations, privacy of demographic information is crucial.

For example, journalists doing investigative work, women who can be stalked if their demographic information is available.

SD ends by summarising the features of Aadhaar that are fatal.

(1) Architecture of surveillance.
(2) No money bill.
(3) No authority to collect biomemtrics before the Act.
(4) No informed consent

Etc

SD: Does Aadhaar survive the first five words of the constitution of India? These words are : "We the People of India."

These words suggest choice and they suggest democracy.

Shyam Divan has finished.

Gopal Subramaniam will continue the rejoinder.

GS: The basic question is this: what so you do about acts of misfeasance and malfeasance in the delivery of public services?

GS: It is important to note that these are government functionaries. And the government cannot place the burden of its own failures on the people.

GS: Has the State produces evidence that children want a fake midday meal or that a widow wants a second pension? It's not the beneficiaries who are cheating the system, but by functionaries of the State.

Sikri J says that it's also intermediaries such as fair priced shop owners.

GS says he completely agrees. And in each situation, the victims are the beneficiaries.

GS comes to S 33 of the Aadhaar Act (disclosure of information) Read it here: advocatekhoj.com/library/bareac…

GS says that this contemplates authentication records, which gives the footprint of your activities to the State. Is there a nexus between this knowledge being with the State and the delivery of public services? The answer is in the negative.

GS: This violates the requirements of the privacy judgment that the infringement be minimal.

Sikri J says that the other side has argued that because of deduplication, fakes have been weeded out.

GS says that this is a "voluptuous" claim. He reads out the figures.

GS says that in this case, a number has become a form of identity.

GS asks what school admissions have to do with delivery of public services. He says that this is no more empowering or enabling, but actually disemowering.

GS says that if law has the effect of disempowering people, and impairing the identity guaranteed to them by the Constitution, it must fall.

GS: When a law imposes a condition of this kind, the State becomes a granter. It reverses the relationship between the individual and the State.

GS: The question is if this law is one that places fetters upon people, even though the motives are benign?

GS discusses the case of West Ramnad, which was relied on by the State.

GS says that West Ramnad was a case about the powers of the State to retrospectively enact law.

GS discusses the Mysore Improvement case, which was also about retrospective lawmaking.

GS says that retrospective validation is possible only if you had a law in the first place, and you had valid actions under that law. Here there was never any law, and there is a fundamental rights violation.

Bench rises.

Petitioners will finish arguing by 4 30 tomorrow.

'til tomorrow, for one final time.

Cheers.