UIDAI admits #Aadhaar is essentially a self-certification based identity issued without any verification
Using the submission from Unique Identification Authority of India (UIDAI) on his specific questions, Senior Counsel Shyam Divan pointed out before the Supreme Court that Aadhaar is essentially a self-certification based identity and nobody from the government has ever verified it, as admitted by the Authority in writing.
Submitting his rejoinder in the Aadhaar case, the Senior Counsel informed the Bench about almost all affirmative responses he received from the UIDAI. "No official from the UIDAI verifies anything at the stage of enrolment. UIDAI also takes no responsibility for correct identification of a person. The ID number is being issued without verification by UIDAI. They do not even know whether the documents presented to the enrollers are genuine or false. And they take no responsibility for it," he said.
The Bench comprising Chief Justice Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan on Thursday resumed hearing in the Aadhaar case.
While UIDAI does not verify age or date of birth, Aadhaar does not identify a person, it only matches, Mr Divan said, adding, since there is no verification, it is blatant disobedience of the order passed by the Court.
"We asked them to confirm that at the time of enrolment, there is no verification that the person is not an illegal immigrant. This question was asked because there was a 23 September 2013 order of the Court, specifically stating that Aadhaar should not be given to illegal immigrants. They have said that there is no verification. This is blatant disobedience of the SC order. They were very quick to issue circulars for linking, but did they issue any circular on this?" Mr Divan said.
Earlier, the Senior Counsel, citing experts from both the sides contended that the design of the entire Aadhaar program, architecturally and technologically, is fundamentally flawed.
Mr Divan said, "Aadhaar may be technologically brilliant but constitutionally impermissible. Part III rights are too valuable to be sacrificed in this fashion."
Talking about Aadhaar and surveillance, Mr Divan said, there are three experts on both sides who agree that real time location tracking is possible, and there are verification logs for five years and it is now for the Court to decide if this is constitutionally permitted.
There was report submitted on 4 March 2018 by Manindra Agarwal, who is on the technology and architecture board as well security committee of Aadhaar. “The Report says that the biometric database is accessible to third party vendors such as Morpho, L1, and Accenture,” Mr Divan pointed out.
Justice Chandrachud said, "The report only says that you cannot have perfect security. And the report says that there is a loss of privacy in the digital world, but Aadhaar is not responsible for that."
Mr Divan contended that there two separate issues. "The first is a limited government issue. It deals with the coercive power of the State. Our case is that there cannot be a system that is designed to track location in real time. The coercive power of the State does not extend that far. It is not as if darkness will descend immediately if the program is allowed. The issue is that if you have this kind of location tracked across a person's lifetime, it creates a chilling effect in its classical sense. This is not about sophisticated commercial surveillance through big data. This is much more basic - name, date and time, location, for everyone and all the time," he added.
The Senior Counsel further said, "If the Court agrees that Aadhaar is an engine for surveillance, then there is no question of balancing. The Constitution expressly rejects it. This is not something you take a chance on, or experiment with."
Justice Chandrachud said that the march towards technology is inexorable and no court or government can stop it. "The human rights perspective is not only about privacy but also about providing benefits to segment of society that could not access them earlier. These are the two issues the Court has to consider when balancing. And also, what safeguards the Court has to consider when balancing," he added.
Mr Divan said, this is not a case where a person who was not receiving benefits earlier is receiving benefits now. He said, "The government's case is that there is a saving in welfare benefits."
Justice Sikri said that the government's case is that through those savings, you can then reach people who need it. Justice Chandrachud pointed out that the Maastricht Guidelines have said that the issue is not the quantity of food, but access to food.
Chief Justice Misra also commented, "access to food is a human right".
Mr Divan contended that there were two answers for this. "The first is choice and options. Choice and options are part of democracy. They promote inclusion. Please give people a choice in this. The second answer is that yes, you cannot stop technology, but you always have choices in how and which technology to deploy. For example, you can have local databases instead of a centralised one," he said.
Earlier questioning liking of mobile SIM to Aadhaar, Justice Chandrachud asked Attorney General KK Venugopal about its relations with Section 7 of the Aadhaar Act. The AG was trying to contend that how the order in Lokniti Foundation case actually constituted a direction to the government.
The Court will continue hearing on next Tuesday.
(Based on live tweets from Gautam Bhatia @gautambhatia88 and Prasanna S @prasanna_s, who each represent one of the petitioners)