One of the most significant courtroom trials of our time has begun in the Supreme Court of India, and the petitioner/s are speaking for every citizen of the Republic of India, who values his/her freedom. The case against Aadhaar, or the Unique Identification Authority of India's pet project of biometrics-based authentication, via relaying all the personal information of a citizen through a central database that has been proved to be leaky and hackable, again and again, is being heard by a constitutional bench of the Supreme Court, beginning today, January 17, 2018.
While a clutch of petitions are being heard together, they are collectively called the Justice KS Puttaswamy versus the Union of India case, with a number of senior counsels led by Shyam Divan, Arvind Datar, Anand Grover, among others, representing the petitioners. The government and the UIDAI are represented by the attorney general KK Venugopal, among others. The Constitution bench itself comprises Chief Justice Dipak Misra, and justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan.
So far, Shyam Divan has argued in two phases, with a lunch break in between, and the crux of his argument stems from the concept of "bodily and informational autonomy" guaranteed by the Right to Privacy judgment of the Supreme Court in August 2017. While Divan says that the challenge is not only to the Aadhaar Act of 2016, but to the Aadhaar project itself, that was piloted in Maharashtra way back in 2010, and had till 2016, been operated without a legal framework, only as an administrative tool. Divan says Aadhaar Act's ratification of Aadhaar programme is itself problematic and part of the issues the petitioners are requesting the court to reconsider.
Shyam Divan says that the first challenge is to the Aadhaar project. "We will set out before you what the Aadhaar project is all about."
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The next issue is the Aadhaar Act, which seeks to ratify the Aadhaar programme. They statute is under challenge.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
While Divan outlined the broad contours of the Aadhaar case, it prefaces his eloquent evisceration of the Aadhaar project with a warning that if the UIDAI programme is allowed to continue, it will hollow out the Constitution. He added that Aadhaar is an electronic leash, making citizens vulnerable to profiling, while its mandatory push would coerce citizens into acquiring and linking Aadhaar to other nodes of information and facilities.
SD: Through a succession of marketing strategies and smoke and mirrors, the government had rolled out a program designed to tether every citizen to an electronic leash.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The petitioners submit that if the Aadhaar programme is allowed to continue unimpeded, it will hollow out the Constitution.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: Inalienable and natural rights have been made dependent upon compulsorily acqiring an Aadhaar number.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Divan argued that "Constitution isn't a charter of servitude", and Aadhaar "inverts the relationship between the state and the citizen", saying personal identity and privacy are rights that cannot be infringed upon by the state.
SD: The Constitution is not a charter of servitude.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: At its core, Aadhaar inverts the relationship between the citizen and the State.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: Does the right to privacy allow a citizen to protect her personal identity without giving up personal information to the State, as long as she chooses to identify herself in a reasonable manner?
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Divan asks do citizens have the right to have their data destroyed if they so choose? He asserts that citizens cannot be denied any benefit for lack of Aadhaar.
SD: If the Aadhaar Act is upheld, then in the alternative, no citizen should be deprived of any right or benefit for the lack of an Aadhaar card.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Aadhaar in dates
Divan traces the journey of Aadhaar from a free-floating administrative project launched in Maharashtra to becoming a Bill in Parliament in December 2010, to witnessing judicial scrutiny that underlined its voluntary nature in August 2015, to the passing of Aadhaar Act in 2016. In between, while the activists had warned both the previous UPA and the current NDA government of Aadhaar's many lapses, how they were ignored, while under the Modi regime the mandatory-voluntary conundrum of Aadhaar was engineered, as individual benefits started getting linked to Aadhaar, particularly via the amendment to Income Tax Act via Finance Act, 2017.
SD: A bill was introduced in Parliament in December 2010. This was very similar to what finally became the Aadhaar Act.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The bill was referred to the Standing Committee on Finance. Lacunas were pointed out pertaining to privacy, security, private players.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: In 2012, many citizens filed PILs against the Aadhaar scheme. In 2013, a two judge bench referred the matter for final hearing, and made it clear that nobody should suffer from lack of an Aadhaar card.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: In 2014, UIDAI itself filed a petition against a Bombay HC order that had directed it to disclose biometrics in a criminal case.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The interim order making Aadhaar voluntary was sustained through multiple hearings.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Shyam Divan tells the Court about the Aadhaar Act, which was passed in 2016. In January 2017, notifications were passed making Aadhaar mandatory for multiple services.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Shyam Divan tells the Court about the amendments to the Income Tax Act, and the requirement of phone linking.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Shyam Divan: Aadhaar has been made mandatory for opening bank accounts, holding insurance policies, making transactions, mutual funds.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Divan argued how a citizen cannot exist independent of Aadhaar anymore, as most of the services are being linked to Aadhaar, despite the many breaches in its security, the private enrolment centres commercially tapping into Aadhaar data illegally, effectively making Aadhaar into a system of exclusion.
SD: Effectively today, you cannot live as a citizen of India without an Aadhaar.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The petitioners before you are people who work in the field. They work in rural India and study rural India. They have found that Aadhaar is operating as a system of exclusion.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: People may not be able to come to enrolment centers. A large number of people do manual work. Their biometrics are not registered.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: Sometimes you have to give the fingerprints twice or thrice. The person giving his fingerprints is not in a position to know whether or the first try, it's worked, if the account has been debited.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: There are petitioners who work with children and schools. Far before attaining the age of consent you are forced to register. For example, for attendance.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
There's the question of consent, which children cannot give without making an informed choice. Yet Aadhaar is being made mandatory for school attendance, for mid-day meals, and in many other instances. Moreover, military personnel made to authenticate via Aadhaar have warned about national security disasters, external surveillance of troop movements. Others like Bezwada Wilson, who have linked privacy to dignity, have petitioned against Aadhaar as a tool of discrimination via identity disclosure or profiling, particularly those in jobs such as manual scavenging, or forced and bonded labours in other forms.
SD: The third set of petitioners are former military personnel. They are raising concerns of national security.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: These petitioners are people who understand what they are talking about. For example, one of the petitioners is Bezwada Wilson, who works with manual scavengers. He truly knows what Article 14 means.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Essentially, Divan argued that privacy isn't an "elitist concern", as many pro-Aadhaar commentators and UIDAI itself, including its head Nandan Nilekani, have asserted. In fact, Aadhaar exclusions have been meticulously documented by welfare economists like Reetika Khera and Jean Drèze, as well as Aruna Roy, Nikhil Dey, among others, who have pointed out the multiple issues with Aadhaar-driven authentication system.
SD: I'm pointing this out because in the privacy hearing, the State said that these are all elitist concerns. They are not. There are genuine, weighty issues.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
From the standpoint of exclusion, Reetika Khera and Jean Dreze, who work on the ground, have filed affidavits.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Divan also argued that UIDAI's capture of 10 finger prints, iris scan, facial photograph are all biometric-based and flawed methods of authentication, particularly among the poor, the impaired, among those involved in heavy construction activities, physical labour, or growing children. Yet, the data is stored centrally, without adequate protection as the umpteen security breaches have clearly proved, essentially leading to unethical data-mining of citizens.
SD: They have a template. The template scales the fingerprints. They then pick up, say, hundred distinctive points, called minutae. The UIDAI then sets a number - how many of those hundred points should match?
— Gautam Bhatia (@gautambhatia88) January 17, 2018
#Aadhaar: Divan argues on UIDAI duplication. "It relies on probabilistic system...they capture finger prints, facial photograph and Iris; But for authentication they dont compare the whole fingerprint"
— Bar & Bench (@barandbench) January 17, 2018
Divan also notes that UIDAI is the sole arbiter of Aadhaar-related complaints, and individuals don't even have the right to lodge a complaint in case their Aadhaar has been breached or leaked, spilling private information into public domain. Divan argues there's negligible government oversight on the data collected by the UIDAI, making the uses of the data nebulous legally and tactically.
Shyam Divan goes through the composition of the UIDAI. Justice Chandrachud makes the first intervention of the case. "This does not seem to be a labour heavy organisation."
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: In fact, one thing that will become clear as this case goes on is that there is almost negligible governmental oversight over this data.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Shyam Divan points out that in the pre-Act era, there was no mention of biometrics in the legal instruments that governed Aadhaar.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: When you are picking up sensitive data for seven years, there must be some standard of governance.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Divan argued that though biometric collection was patently illegal, it was not addressed by the Aadhaar Act, nor was it fixed. At this point, justice Sikri asked if the illegality of the biometrics database would mean the database itself would have to be destroyed. In fact, scaling up can lead to complete profiling of an individual, particularly since Aadhaar is being force-linked to every conceivable operation, civic and economic, in the country. Unlike the biometrics collected for passports or at border checks, the Aadhaar data isn't restricted in its mandate and is being used for almost everything.
SD says that biometric collection was patently illegal, and that illegality was not cured by the passing of the Aadhaar Act.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Shyam Divan says that while border control may take your biometrics, it is restricted to that. You're not required to submit your fingerprints for various transactions throughout the day.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The difference is between a pervasive and a non-pervasive system. He takes the example of mandatory Aadhaar for mid-day meals.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The system is one that throughout the day, there will be an electronic trail. Chandrachud J had earlier asked a question about cross-linking of databases. SD says that Aadhaar enables that, and that allows for profiling.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
SD: The question is not whether they are actually tracking or not. The question is whether such an architecture possible.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Shyam Divan says that the core issue is that the design itself is bad. It enables State domination.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
In fact, Divan has argued that Aadhaar as first ID was a miniscule minority in numbers, and was mostly obtained via state coercion, making possible an architecture of constant tracking, enabling state domination. He also asserted that Aadhaar savings are questionable, given the instances of leakages and exclusions.
Chandrachud J asks why the State can't say that biometrics are needed to prevent social welfare leakage and go to the right persons.SD says he will address that issue in detail, but flags the argument that the outflow in terms of Aadhaar expenses is far more than savings.
— Gautam Bhatia (@gautambhatia88) January 17, 2018
Evidently, this is the very first day, and the petitioners' counsel has made a good opening argument building the case against Aadhaar. That this comes on a day when the UIDAI head two opinion pieces in two of the leading national dailies, preceded by full-page advertorials in The Times of India yesterday (January 16), speaks volumes about the enormity of hurdles ahead of a band of conscientious activists and their legal warriors.