Thread by @prasanna_s

#Aadhaar hearing. Rejoinder to continue. Gopal Subramanium Sr. Advocate is ready and waiting for the Bench to assemble. Will try and capture as much as possible in tweets, but is tough to keep pace when he is in his zone and in full flow :)

GS: On all notifications on Section 7. Each of the notifications are in furtherance of the dignity of the individual. If that is so, there is no question of imposing conditions when dignity is an inherent and inalienable right.

Sikri J asks about deduplication and therefore reaching the correct targeted beneficiary.

GS: If it is indeed such a affirmative action law, it needs to stand constitutional scrutiny. Stated purpose of the law is not necessarily the proper purpose of the law for constitutional..

....test.

GS: the law really does not achieve its stated purpose which is seamless delivery. The same delivery points remain under the 144 notifications.

GS: The aim is laudable..may be there is no malafide. But no stated purpose of the law has been attained or attainable by the law.

GS: The State has furnished no evidence to suggest that any of the 144 notifications have changed the landscape of seamless delivery of the said services. And all the evidence we have is of exclusion. Brings up how the Jharkhand cases happened when the women had ration cards!

GS: Cites yesterday's judgment on the progression of rights by the Supreme Court. Gives the example of how pension has been linked to Part 3.

GS: Section 7 reinforces the asymmetry of power between the citizen and the state giving state giving unlimited power to limit citizen rights.

GS: The law lacks proper purpose.

GS: A claim to a proper purpose is not proper purpose.

GS: Refers to Delhi High Court local commissioner's report on how POS machines were not working at most FPS shops.

GS: Authentication is at the heart of the Act. Without authentication, there is nothing special about Aadhaar than other identities. But all evidence we have pointing to authentication simply not able to work reliably.

GS : Reads Section 8. Digresses a bit and says how there is no real and effective oversight over REs.

DYC J agrees and says in a legislation such as this, we need a hierarchy of regulators.

GS: Subsidy benefit or Service in Secion 7 are words of condescension.

GS: Can all affirmative action where rights under 14, 15, 16 and 17 and 21 and Fifth schedle can be subject to a condition now?

GS: Justice Black said how this Govt is by of and for the people and not over the people.

DYC : Are subsidies largesse or a matter of right?

GS: This was settled in 1982 if not earlier that all of these are matters of right. Bonded labourer rehabilitation now is linked with aadhaar...contrary to the judgment in Bandhua Mukti Morcha!

Sikri J wants to know the difference between Census and Aadhaar under the Constitution.

GS: Continues on Section 7. A recipient of a benefit should even be made aware that he is such a "beneficiary" to preserve his dignity under an ideal regime.

DYC J points at how Section 7 is only an enabling provision. He asks what guides the discretion of central govt before notifications are issued.

GS: Section 7 has been interpreted virtually as a mandate and not discretionary by the government inasmuch as there are as many as 144 notifications covering many many fields.

GS: There is no common denominator in Section 7 for any proportionality analysis. Only wants to impose conditions such that all his rights as grant or dole by the state. That is the end of dignity.

GS: With the march of constitutionalism...the dissolution of certain identities are guaranteed. Section on 17,23 and 24.

The identity of the manual scavenger cannot be further entrenched. It has to be removed. Can you deny a person rehabilitation on any condition and...

...have him return to that activity? That is simply unimaginable under our Constitution.

Section 7 does not satisfy "legitimate aim" because the true aim different from purported aim.

And the means used are clearly not the least restrictive.

GS: The question of balancing does not arise at all in this case. Balancing only arises in a case where there are competing right claims. Even the balance cannot emasculate any of the conflicted rights.

No adequate justification offered by the government. The last study on fakes and ghosts was in 2007...which in turn relied on data as of 1997!

GS: the individual is an end unto himself; He has inalienable rights (no balancing for inalienable rights); no relinquishment of constitutional rights.

GS: This Court overruling ADM Jabalpur was a conscious one.

The doctrine of mere possibility of misuse does not apply here because there is actual denial of rights and infringment demonstrated.

GS: As far as Part 3 rights are concerned, the doctrine of deference or judicial restraint does not arise.

GS: After yesterday's judgment, the value of the 2011 standing committee report becomes important. There are a number of problems in the Act...but most importantly...

...does not achieve its purpose.

GS: Reliefs claimed.

1. Act to be struck down.
2. All data destroyed and structures dismantled.
3. In cases of deprivation amounting to death, compensation should be given to the families of the deceased.

GS concludes.

Anand Grover finishes his brief submission after handing over his written submissions. He points out how safeguards and contracts have not been rebutted and how 139AA is specifically challenged in his petition.

AP Datar will continue at 2.30 pm.

Bench rises for lunch. Will sit till 4.30 pm today.

APD begins his rejoinder. Wants to confine to 139AA and PMLA Rule. But will touch upon money bill first. PC will argue at length on money bill.

APD: A-G's submission on "only" incorrect as the intention is contrary from source documents.

Pith and substance doctrine has no applicability here in interpreting an article. Only legislative entries.

It can at best be a financial bill of category 3.

APD: Doctrine of Severability does not apply. Severability applies only to validly enacted legislations. Here the Act is still born. Not validly enacted. Non est.

Refers to Khihoto Hollohan and a Pakistani Supreme Court decision to state that the whole Act should b declared null

APD: Mohammad Sidiqqui and Yogendra Jaiswal cases should be overruled. "Finality" does not mean beyond judicial review. Quotes an NUJS paper that catalogues the cases in which review has been entertained.

APD: next moves to PMLA. Shows the impropriety of amending the RBI master circular after being pointed out in Court.

APD: Proportionality test not satisfied. No evidence whatsoever. All data for deduplication of PAN cards etc are based on 2006 data.

APD: Only magic words like black money and terrorism cannot be thrown around. The justification of the law for proportionality cannot be a ritualistic exercise like this.

APD: aadhaar E-KyC is fatally dumbing down existing KYC norms and is contrary to claims, actually making money laundering easier.

So more ease for money launderers and more hassles for bona fide account operators, with a threat of account freeze!

APD: Proportionality cases being cited. No justification for blocking the account for instance.

APD: All this is colourable exercise of power. To collect the personal sensitive data of 120 crore people compulsorily in the name of and disguise of all these magic words like terrorism and black money.

APD: Qua 139AA and PMLA there is no data provided by State at all as to their effectiveness. They both need to be struck down. No judicial deference necessary.

APD:Not a single test of compelling state interest satisfied in Aadhaar.

APD: The whole Act is manifestly arbitrary.

APD: Every 1 of the 9 privacy principles suggested by the Shah Committee of experts flouted by Aadhaar.

This is among the most important cases before SC. 100 crore people are involved.

APD: At a minimum he says the following suggestions he has.

1. No Aadhaar for anything outside 7.
2. Within 7 strict scrutiny of every notification.
3. Definite choice for opt-out.
4. Absolutely make it optional for vulnerable groups - manual labourers, farmers, old age persons

APD: When the government has all the data of all its citizens, the tipping point to the otherside of democracy is extremely nigh and easy.

APD: we constantly talk of Digital India. Digital Indians should not mean the means to achieve that Goal.

APD concludes.

P.Chidambaram begins his rejoinder on Money Bill.

A-G's reading of "only" is clearly erroneous.

PC refreshes the Court's memory on various provisions of the Act that do not call under a to f clauses of 110 (1). Including 3,4, 54 (2)(m) and 57.

PC: 110 (1)(g) must be read narrowly.

PC: State has not shown to which provision under a to f to which provisions such as 57 or 54 or 23 is incidental. Only then can such a provision be saved by clause g. If no such provision is shown among a to f, the Act falls.

PC: State has failed to show how Raja Rampal, and Hollohan are not good law and how Mohd Shahid Sidiqqui and Yogeshwar Jaiswal are good law.

Implications of non money bill being passed as a money bill is immense. Violation of the basic structure...as it disables one half...

...of the Parliament from exercising its wisdom in a bicameral legislature.

Such exercise of power should not be condoned by this Court.

PC: No provision in our Constitution to sever and save an invalidly enacted legislation. Unlike Australian constitution.

PC: The defect of non participation of RS and President under 111 is not cured by severability in the case. Not the function of this Court to save legislation that is fundamentally unconstitutional.

PC: No case here that the Speaker has not certifiied multiple provisions as money bills or non money bills. The entire bill has been certified and if the certificate is invalid, no application of Severability.

PC: Final point on Pith and Substance. No applicability in interpreting 110. Only entries of legislative lists.

PC concludes by stating SC does not have to deal with consequence of Act being struck down. Parliament will find that answer. Suffices for SC to just declare this Act void.

PC:Any other decision will make a mockery of Article in 110.

K.V.Viswanathan begins his rejoinder.

KVV says four fundamental errors vitiate the defence by Union.

1. Least Restrictive means is a facet of proportionality. Contrary proposition by Dwivedi is totally incorrect.
2. Theory of Balancing. No balancing among the bundle of rights of individual.

It is a first principles of right that the majority's rights will score over a minority's!

No fundamental rights will survive if we accept the balancing proposition put forward by the State.

In this case no evidence by state of fraud etc. We have shown how identity fraud is a really really a negligible % of frauds.

Also points out how Dwivedi's submissions refers to an overruled judgment in Mitlesh Kumari.

KVV: Resort to exception handling to save the Act is a complete misconception. Exception handling is ultra vires the Act and UIDAI has no control over such exception handling at all.

KVV reading from Salmond on first principles of right and duty.

He is rejoining on section 7 to show all vested rights cannot be conditioned on aadhaar.

KVV: Correlative duty on state to provide for welfare ...that burden cannot be shifted on citizens..to a "technological menace".

KVV: All fundamental and statutory rights related services ought to be exempted from mandatory aadhaar...at a minimum.

Sikri J asks about targeted delivery and the efficiency therefore.

KVV: That is only putting people against people. An argument of convenience. It is the state's duty to have strong internal enforcement mechanisms. The whole burden cannot be shifted to the citizen!

KVV submissions here:

drive.google.com/a/advocatepras…

KVV concludes.

PV Surendran Sr. Advocate will be the final batsman.

He starts with 2003 12 SCC 738. Pn excessive delegation.

2001 6 SCC 301. Laying requirememts for different delegation provisions cases.

He concludes.

A-G comments that this is the second longest hearing in the history of the Supreme Court after Keshavananda.

Bench rises.