Senior Advocate Shyam Divan continued to present the petitioners’ case on Day 5, reading from several cases related to the European Convention of Human Rights (ECHR).

He read from the Zakharov ECHR case judgment where the court ruled in favour of the Applicant even though he could not prove that he was a target or victim. A 17 judge bench ruled that the mere existence of such a law enabling covert interception of telecommunication by Russia is a violation of Article 8 of the European Convention. The system of covert interception of telecommunication by Russia is a violation of Article 8 of the European Convention – is the claim in that case.

Justice Sikri points out another para in support of petitioners from the case where the Court ruled the existence of criminal remedies against abuse is not sufficient protection, citing lack of control to the data subject. Mr. Divan thanked him.

Mr Divan proceeded to read from the Digital Rights Ireland case where an obligation imposed by the directive on electronic service providers to retain personal and communication data was struck down. The state’s claim of concerns of terrorism was denied saying that the directive does not pass the proportionality test.

Mr Divan next referenced the S and Marper v UK, 2008 ECHR case that reversed a House of Lords decision. HoL speaking through Lord Steyn had held that the retained data is valuable for authorities for crime detection and prevention and that the risk of infringement of privacy is not grave.

The European Convention on Human rights specifically deals with fingerprints and says retention of fingerprints without consent itself is an infringement of the right to privacy.

Mr Divan then proceeded to read out from a common counter affidavit filed by the Union of India and UIDAI in the Shantha Sinha and Wilson petitions in June 2017 where they deny the possibility of surveillance: Page 25, Paragraph 9 “Privacy safeguards under the Aadhaar act of 2016”

Mr Divan then pointed out that:

1. There was no denial of Kelekar and D’Souza affidavits.
2. No denial of their credentials
3. There is a specific denial on 360-degree profiling and a general denial of surveillance.

Mr. Divan then read quotes from the UIDAI document on SRDH institutional framework document of 2012 “State Resident Data Hub: Institutional Framework“. The UIDAI had been encouraging SRDHs from the start and there were also budgetary allocations to enable them. “UIDAI envisages this to provide the states the ability to manage resident data.” “SRDH software is deployed, and Aadhaar data is added, and enriched with local data from other sources. For example, Kerala’s KYR+.” “Connect with other databases in the state for a custom view. UIDAI aims to provide the states with a guiding model.”

Madhya Pradesh: Mr. Divan pointed out that this was a centralized repository aggregating information available with different government departments. The use of Aadhaar as the standard identifier. He showed the “360 degree profile” contrary to public claims of the UIDAI and the claims in the affidavit. Reading an explanation of “single source of truth” (SSOT), Mr Divan reminded the Court of the Orwellian “Ministry of Truth”. [In information systems design and theory, single source of truth (SSOT), is the practice of structuring information models and associated schemata such that every data element is stored exactly once.]

Odisha: Mr. Divan described the centralisation integrated database Aadhaar as the identifier and pointed out that it was 360 degree profiling with almost all the information interlinked.

Discussion ensued between Justice Chandrachude and Mr Divan on the term “360 degrees” being jargon and the considerations of social security benefits. Justice Chandrachud suggested that cases in European courts may not be applicable since they don’t have to deal with issues like MNREGA. Accepting that the possibility of surveillance was an important point, he stressed that the efficiency of administration of social benefits was important as well.

To this, Mr. Divan provided examples of aggregation and retention of data that was irrelevant to social benefits, like vehicle licences and HIV patients.

Mr. Divan also referred to the coverage percentages where the number of Aadhaar holders in Delhi could be 117% to 129% of the population of Delhi!

Justice Chandrachud referred to claims of savings caused due to Aadhaar and wanted to know whether the Court could ignore them, if they were to be taken at face value. Mr. Divan reserved his reply to this to address in detail later and continued with his illustrations of the SRDHs.

Telengana: Aadhaar data mapped with a Geographical Information System allows Telangana’s SRDH to get the details of every resident after zooming into an area. Justice Khanwilkar pointed out that in this instance the SRDH tracked only details of residents and not their movements.

To this, Mr. Divan responded stressing the gravity of a Constitutional Bench hearing a Constitutional case and referred to learning from history the implications of having accurate identifiable data with full names, relationships, community and religion in the hands of a powerful state.

Mr Divan stressed that the SRDHs would have to be dismantled and the data destroyed, as they all enable communal profiling, class profiling and a pervasive loss of privacy.

He read out Justice Chandrachud’s opinion in the 9-judge bench on aggregation of data being a privacy infringment.

Session 2:

He began with discussing Samir Kelekar’s affidavit explaining the IP address as a geographical locator and unique device IDs.

He showed the court screenshots of the Kerala Dairy Farmer Welfare board website, which has a pension scheme connected with Aadhaar. The columns include Log ID, Aadhaar Number, Validation Success (Y/N, biometric mismatch), Client IP (approximately a range of two kilometer radius can be located), request date, unique device ID (which takes you within 200 – 500m of where it is registered), UBC ID. Mr Divan explained using examples “X” – a woman who had tried to authenticate her Aadhaar at several places to access her pension – that the UID helped trace: Name, number, whether it failed and reason for failure and the location within 200 – 500 m – in real time.

The number had been mapped onto GoogleMaps. Mr Divan proceeded to show how real time surveillance was made possible with such tracking and showed the court how “X” traveled to different parts of Kerala on three days, trying to get authenticated. The dates, locations and times of authentication were tracked – even for failed attempts. Mr. Divan asserted that this sort of surveillance of citizens was being carried out by states and could not be allowed and termed it a “digital dictatorship”.

Justice Chandrachud postulated that the Dairy Board may be using the information to ensure that the poor received targeted delivery. Mr. Divan stressed that this was surveillance, to which Justice Chandrachud  said that there is no surveillance in making sure that somebody gets their pension. Mr Divan stated the surveillance was though tracking movement.

Justice Chandrachud brought up the issue of phones tracking movements and how this information amounted to surveillance. Mr Divan said that the surveillance was in being able to locate the person whenever an authentication took place. Justice Bhushan asked about ATM cards, which can locate a person on use to which Mr Divan replied that in the case of an ATM card, only the bank had the information. With Aadhaar, there were 139 different schemes (and S 57 allows for more) – a full electronic trail from morning to evening.

Mr Divan commented that this would be the envy of North Korea, to which Justice Chandrachud retorted that it is also the envy of the World Bank and The Economist.

Justice Chandrachud saw the Dairy Board as an example of the positives of Aadhaar in allowing targeted delivery that had been praised by the World Bank.

Chief Justice of India remarked, “Mr. Divan, If I have understood your submission, you are saying that the shadow is becoming longer than the man. We are all losing our solitary status.”

Justice Chandrachud referred to the arguments on surveillance as rhetoric and suggested coming to the brass tacks. Mr. Divan asserted that surveillance was at the core of this case and that example unequivocally establishes the existence of the capability of surveillance – the tracking of citizens across the day and across their lifetimes. He asserted that the application was not limited to the Kerala Dairy Board, but about how it is a microcosm of the program as a whole that enables an architecture of surveillance.

Justice Sikri asked about exclusion and whether this was certain when Mr. Divan described both exclusion as well as the extent of data being collected for mass surveillance. Mr. Divan asserted that the evidence for exclusion before the Court is mountainous.

When Justice Sikri enquired whether it was only anecdotal, Kapil Sibal asks that the government produce the audit report and quoted the economic survey on authentication failures being up to 49%.

Stressing the importance of surveillance and the necessity of the Constitutional bench considering the implications of such information in the hands of an all powerful state, Mr. Divan brought up the question of Aadhaar enabled Trust and background checks, citing it as an example of the invasiveness enabled by Aadhaar. He stressed that this was not merely an issue of Article 57, but a Constitutional court had to think of whether such invasiveness was permissible.

Mr. Divan next described how the Dedup and biometric tech is not developed, owned, or controlled by UIDAI.

Referring to the date – (30th of January – date of Gandhi’s assassination 70 years ago), Mr Divan about Gandhi’s satyagraha against the Transvaal ordinance that required Indians in Transvaal to register and give fingerprints, on pain of imprisonment and deportion. The certificate issued could be demanded at any point by an official and had to be produced on demand at any government office.

Gandhi said that “I have never known legislation of this kind directed against free people anywhere.” Gandhi said that fingerprints were taken only from criminals, and this amounted to degradation. “The Ordinance brands the community as criminal and suspect.”

Mr Divan’s next submission was on limited government, constitutionalism and the rule of law in four points. Limited government stems from the preamble and the values underlying the constitution. The State, which is created by the people, cannot expand to a point where it acquires such a huge dominance over the people and asked if a limited government could require identification in only one manner, and that manner requires you to part with biometrics. “Can the State say you must identify yourself in this one manner, or I won’t recognise you any more?”

Bringing up the question of dignity, he stated that the Aadhaar program violates both individual and collective dignity by making rights conditional on forced authentication through only one method.

Mr Divan challenged the Aadhaar on the issue of good governance and rule of law, as the program functioned under administrative notification and swept up the entire population without a statute. He described the standards set by other statutes and remarked that the notification didn’t even mention biometrics for seven years till the Aadhaar Act was passed. He stated the series of breaches of SC orders in the implementation of the programme and lack of Article 299 of the constitution.

Justice Chansrachud enquired whether Ram Jawaya Kapur principle is applicable for Article 73 powers for the notification on the issue of rule of law.

Mr Divan read out the following references on the subject:

• • Chief Justice Evans Hughes remarks on limited government from speech on 150th anniversary of US Congress.
  • Next reading is MP Jain on Indian Constitution…distinction between having a Constitution and Constitutionalism.
  • He then proceeded to read references for the limitations on the government under the constitution.
    • Article 245 of the Constitution
    • State of MP vs Thakur Bharat Singh.

      “Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may, be taken in pursuance of lawful authority which if the provisions of Art. 19 were operative would have been invalid.) Our federal-.’ structure is founded on certain fundamental principles : (1) the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies’ of the executive Government possess only such powers as have been conferred upon them by the people ; (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial–each organ having some check direct or indirect on the other ; and (3) the rule of-law which includes judicial review of arbitrary executive actions.”

    • Sampath Kumar v Union of India 1987. Chief Justice of India said that Sampath Kumar has been overruled. Mr. Divan clarified saying this portion on limited Govt remains good law.
    • Subcommittee for Judicial Accountability v UoI 1991 4 SCC 699 5J..on distinction of limited govt v parliamentary supremacy.
    • The principle of constitutionalism stated in the I.R. Coelho vs State of Tamil Nadu judgment, also citing Justice Chandrachud’s judgment on the balance between Part 3 and 4 of the Constitution specifying that the social goals of Part IV of the Constitution cannot be achieved at the cost of fundamental rights.
    • K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1

That concluded the Court’s proceedings for the Day. The next hearing will be on Thursday, February 1, 2018.

Summary of hearing based on tweets by Gautam Bhatia and Prasanna S