Asheeta Regidi

Editor's Note: This copy was published on 4 May, 2018. It is being republished in light of the Supreme Court's verdict on the constitutionality of Aadhaar likely being pronounced tomorrow.

On Day 36 of the Aadhaar hearings, the Attorney General K.K. Venugopal concluded his arguments for the State, arguing on the money bill issue and stating that the non-mandatory Aadhaar for obtaining a SIM was a temporary measure until the disposal of the case.

Senior counsel Shyam Divan then commenced rejoinders on behalf of the petitioners. Shyam Divan argued that the State’s expert report conceded that location data could be tracked via Aadhaar, thus establishing surveillance in a fundamental form. He also argued that the UIDAI’s responses to the questionnaire indicate that no verification is done for those enrolling with Aadhaar. Aadhaar is thus nothing but a self-declaration form of verification of identity.

Aadhaar as a money bill

The Attorney General first continued his arguments on the money bill from the previous day, arguing that Article 110(1)(g) of the Constitution, which allows a money bill to include any provision incidental to the specific matters it deals with, was a stand-alone provision. He argued that a bill that does not relate to clauses (a) to (f), could still be covered independently under (g) as a money bill. Thus, Aadhaar could be passed as a money bill, and did not have to be passed by the Rajya Sabha.

Section 57, he further argued, was an enabling provision that allowed the state legislature to introduce Aadhaar for various services. The state legislature may or may not introduce it as a money bill, and it would at that stage need to be examined if challenged in the Courts. He further cited Article 122 of the Constitution, which doesn’t allow the Courts to inquire into the proceedings of Parliament, and Article 255, which doesn’t allow an Act to be invalidated only because a recommendation that was required was not given, subject to prescribed requirements.

Non-mandatory Aadhaar for SIM is a temporary measure

Next, turning to the issue of Aadhaar SIM linking, he stated that currently, Aadhaar was not mandatory to obtain a new sim card or connection. Still, there would be no chance of forgery or fraud if Aadhaar is linked to SIM cards. He argued that Aadhaar was made optional at the direction of the Supreme Court, but it would remain so only until the disposal of this case.

Democratic government cannot be accused of conspiracy

Lastly, on the point of surveillance, he argued that a democratic government could not be accused of such conspiracy. He completed his arguments, stating that the state took offence at the use of terms such as ‘electronic leash’ and ‘concentration camps’.

Technical evidence on surveillance

Senior counsel Shyam Divan then commenced his rejoinder for the petitioners. He commenced with arguing that the Supreme Court was the vanguard for balancing the complex issues of a new technology and the people’s rights.

He then turned to the issue of surveillance, pointing to technical evidence previously submitted by the petitioners. After this the State filed an expert report by Maninda Agarwal, an IITian and a member of the technology and architecture board as well as security committee of Aadhaar, in early March. He argued that surveillance has three aspects- identity, date and time, and location. The disagreement between the parties was on the tracking of the third aspect.

Evidence of tracking of real time location via Aadhaar

He pointed to the expert report, wherein firstly, it was stated that the biometric data is accessible to third party vendors such as Morpho, L1, Accenture, etc., thus expressly conceding this issue. The report further states that there is a verification log, the leakage of which can lead to forged identities and revealing of location of transactions. This, he argued, was also an express admission that tracking of current location was also possible, and that UIDAI had access to it. He argued further that even in the absence of verification logs, current location could be tracked. A third party could access up to 5 years of location data through a breach of the logs.

The Bench here, stated that it wasn’t possible to have perfect security, and the report merely concedes the loss of privacy in the digital world, and that Aadhaar was not responsible for that.

Limited government and basic surveillance

To this, it was further argued that there was the issue of limited government, which deals with the coercive power of the state. It was argued that this power did not extend to allowing the tracking of location data in real time. This kind of tracking across a person’s lifetime creates a chilling effect. This, he argued, was not about sophisticated commercial surveillance like big data, but much more basic- name, date and time, and location for all persons and all the time.

UIDAI’s presentation shows surveillance at various levels

He then turned to the UIDAI’s powerpoint presentation in Court. The presentation, he argued, states that every biometric device has traceability, which, though designed to prevent fraud, allows an electronic trail going back to each device. He argued that thousands of entities, like the Kerala State Board as demonstrated to the Court by the petitioners, would have access to the related databases.

This, he argued, was not about surveillance and security at the level of the CIDR, but at the levels of the many AUAs and ASAs involved with Aadhaar, and the potential chilling effect it can have on a person’s conduct. He countered the state’s argument that the UIDAI and the CIDR are separate, and that surveillance would be possible only via a collusion between the two, arguing that the State cannot empower an instrumentality with that much power and control.

Based on the three expert opinions shown to the Court, he argued that it was established that the design of the entire Aadhaar program, architecturally and technologically, is fundamentally flawed. Aadhaar, he argued, may be technologically brilliant, but is constitutionally impermissible.

People should have a choice on the inexorable march towards technology

He then turned to the issue of balancing rights. He argued that if the Court agrees that Aadhaar is a vehicle for surveillance, then the question of balancing does not arise, and the Constitution expressly rejects such a system.

The Bench, here observed that the march towards technology is inexorable, and no court or government can stop this. The human rights perspective, they stated, was not only about protecting privacy but also about enabling access of benefits to the previously deprived sections of society. Both these issues would have to be considered while deciding on the issue of balancing rights.

Shyam Divan then argued that choice and options are a part of democracy, and people should be allowed a choice in this issue. Further, if technology cannot be stopped, then there must be a choice in how and which technology to deploy. For instance, there could be a local database instead of a centralized one.

UIDAI’s response to the questionnaire indicates no verification

Next, he turned to the questions that were put to the UIDAI after the presentation (See Questions and responses here). Based on this, he argued that in effect the UIDAI answered positively to all the questions raised- that there was no verification at the stage of enrolment, the UIDAI does not take responsibility for the correct identification of a person, there was no verification that the documents presented for enrolment were genuine, etc.

Aadhaar is a self-declaration system of verification

Aadhaar, he argued, was thus essentially a self-declaration system of verification, which no one in the government has verified. It simply provides a matching system, ensuring matching with the data provided at the time of enrolment. This data, then becomes a person’s universal identity. The government’s claims that Aadhaar can stop terrorism, he argued, thus fail. This, he argued, is a deep flaw in the Aadhaar system.

Aadhaar violates court orders on non-issuance to illegal immigrants

Further responses of the UIDAI were discussed, including that Aadhaar authentication matches only the data but does not verify the person’s identity, the probabilistic nature of the matching, and about the cancellation of 49000 operators. Further, the issue that there is no verification of whether a person is an illegal immigrants, despite a court order saying that Aadhaar should not be given to illegal immigrants, was pointed to. This, he argued, was blatant disobedience of the court’s order.

The rejoinder will continue on Tuesday.

Sources of the arguments include livetweeting of the case by SFLC.in, Prasanna S and Gautam Bhatia.

The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.

You can read our complete coverage of the Aadhaar Supreme Court case below:

Aadhaar Hearing: Attorney General argues that Aadhaar is fundamentally a money bill to which Section 57 is an ancillary provision

Why SC needs to look into technical evidence of Aadhaar’s surveillance capabilities

Lack of governmental ownership of CIDR’s source code can have serious consequences

Will State give citizens rights only if they agree to be tracked forever, asks lawyer Shyam Divan

Coalition for Aadhaar: A collective of private companies wants to ensure that Aadhaar ID and related services continue to be offered

Petitioners argue on centralisation of data and challenge Aadhaar’s claims on savings

Petitioners argue for a voluntary ID card system that does not collect user data

Petitioners argue that receipt of govt benefits cannot be at the cost of compromising fundamental rights

Aadhaar is architecturally unconstitutional, argue the petitioners

Petitioners argue that Aadhaar violates dignity by objectifying and depersonalizing an individual

Petitioners seek compensation for starvation deaths and extension of March 31st deadline

Section 7 exception in Supreme Court’s interim order greatly affects people’s constitutional rights

Entire Aadhaar project is beyond the stated objectives of Aadhaar Act, argue petitioners

Petitioners conclude their arguments on 'the number of the beast' Aadhaar, highlighting various issues

Aadhaar hearing: Political liberties cannot be foregone for economic and social justice, states the Bench

Aadhaar hearing: UIDAI’s presentation discusses Aadhaar enrolment, updation and authentication processes in detail

Aadhaar hearing: Supreme Court expresses concerns with data breaches, Aadhaar security and profiling

Aadhaar hearing: Petitioners question UIDAI on verification of residency requirement, de-duplication rejections and authentication failures

Aadhaar hearing: Attorney General argues that pervasive collection of fingerprints meets proportionality requirements

Aadhaar hearing: Bench criticises the argument that Aadhaar can prevent bank frauds and terrorists from acquiring mobile numbers

Aadhaar hearing: Additional Solicitor General argues Aadhaar-PAN linkage enables deduplication, prevents fraud and widens the tax base

Aadhaar hearing: Not necessary to prove least possible invasion of privacy, argues Additional Solicitor General

Aadhaar hearing: Counsel argues that Aadhaar is more secure than a data protection law, SC disagrees

Aadhaar hearing: Supreme Court questions why both the right to privacy and right to food cannot be secured under the Constitution

Aadhaar hearing: Senior counsel Rakesh Dwiwedi argues that the UIDAI is constantly improving and upgrading its systems

Aadhaar hearing: Aadhaar has the support of two governments, argues the State

Aadhaar hearing: The Act is a well balanced law of which a few provisions should be struck down, argues advocate Gopal Sankaranarayanan