Moneylife's Fight Against Aadhaar Goes Back to 2010, and It Continues
The fate of the Aadhaar will be decided after a marathon hearing that was also historic, because the arguments and proceedings in the Supreme Court of India (SC) were avidly followed and commented by tens of thousands of Indians on with the same fervour and interest as a cricket match. For the first time ever, the proceedings were live-tweeted by a few intrepid lawyers. (Read: Historic Aadhaar Hearing, Second-longest in SC history, Concludes)
 
Unlike the National Democratic Alliance (NDA), which had done an about-turn on the Aadhaar identification and then brazenly flouted a Supreme Court stay order, Moneylife has been among the earliest publications to take a strong stand against this identification system. In fact, as far back as nine years ago, when discussions happened in small e-mail groups that our managing editor participated in.
 
Moneylife Foundation organised a workshop by pro-privacy activist and IITian, Vickram Crishna, who was among the many petitioners in the recently concluded hearings. Crishna made the point that Aadhaar’s biometrics based identification  would not address and of the structural issues that lead to chronic poverty (Read: A workshop on Aadhaar / UID with Vickram Crishna).  This is now established by innumerable reports of citizens being deprived food at shops run under public distribution system (PDS) scheme due to failure of Aadhaar biometrics authentication. (Read: Starvation death highlights flaws in Aadhaar-bank linkage https://www.moneylife.in/article/starvation-death-highlights-flaws-in-aadhaar-bank-linkage/52610.html)
 
Moneylife followed it up with a series of articles and seminars and hundreds of articles on the many problems with the biometrics based Aadhaar and the international experience with such identification. 
(https://www.moneylife.in/public-interest/aadhaar ). Those days, the involvement of billionaire technocrat, Nandan Nilekani, gave the project its star status, but the Bharatiya Janata party (BJP) the main opposition party was strongly against it, with current Prime Minister Narendra as well as Dr Subramaniam Swamy and others speaking out against it in the run up to the elections. 
 
 
Moneylife followed up the talk with a series of articles from July 2010 on Aadhaar or UID by social activists, technology expert. This series dissected issues related with identification, biometrics as well as highlighted several lacunas in the functioning of Unique Identification Authority of India, (UIDAI). (Read: UID Issue: Numbers Game -1)
 
The Aadhaar project was supposed to eliminate corruption in welfare schemes and provide the poor with an identity. It is, however, clearly spreading into areas that dangerously intrude into our lives and rights. We organised a talk by Colonel (retd) Matthew Thomas, a former defence veteran and missile scientist on 12 January 2013 in Mumbai. He spoke on the evils of the Aadhaar project. Col (retd) Thomas, said that Aadhaar was conceptually flawed, deceitfully promoted, dangerously structured and ignorantly applied. For the first time, he exposed how the project give access to highly sensitive Indian data to foreign countries and contractors with dubious antecedents. One of UIDAI’s contractors, for example, is L1 ID Solutions, which was formed by merging two entities, one of which was under investigation by US Securities and Exchange Commission (SEC) for certain offences. (Read: UID/Aadhaar – Medicine better than Disease?) Col Thomas is one of the petitioners in the Supreme Court in the Aadhaar case. 
 
At that seminar in January 2013, technology expert Jude Terrence D’Souza, an expert in design and development of microprocessor-based embedded electronic systems, conducted a live demonstration of how a simple Fevicol mould, created either in collaboration with another or under deceitful circumstances, can be used for authentication. 
 
 
Unfortunately, both the United Progressive Alliance (UPA) government and UIDAI were in such a hurry that they neglected basic principle of pilot testing and size of sample. UPA promoted UID as a pro-poor initiative to gain political mileage and acceptance. UID was projected as a device that would prevent corruption in welfare schemes. Both were plain deceitful. 
 
For over 1.2 billion UID numbers, they used data from just 20,000 people, in pairs, as the sample and have on the basis of the results gone ahead with the UID number through the 'Aadhaar' project. According to test results of UIDAI’s biometrics-based Aadhaar project, there could be up to 15,000 false positives for every Indian resident. Moreover, this figure was just for identification and not for verification at that time. 
 
Mr D'Souza, also analysed the pilot study conducted by the UIDAI, and felt that given the well-known lacunae in our infrastructure and massive demographics, biometrics as an ID will be a guaranteed failure and result in denial of service. "The sum of false acceptance rate and false rejection rate (EER) reveals only part of the problem, which is rejection or acceptance within a short duration of enrolment. The bigger problem is ageing, including health and environment factors, which causes sufficient change to make biometrics completely unusable and requires very frequent re-enrolment," he said. (Read: How UIDAI goofed up pilot test results to press forward with UID scheme)
 
In September 2013, Moneylife Foundation bought together bank employees union, several non-governmental organisations (NGOs) as well as prominent activists and citizens to raise voice against Reserve Bank of India (RBI)'s move to install biometric enabled automated teller machines (ATMs). These NGOs, activists and citizens were startled at the complete lack of clarity on the huge costs involved in complying with RBI’s diktat on e-KYC. Also, lack of clarity on the issue of whether each biometric based transaction would involve a transaction cost to UIDAI – who pays this cost? Will it be distributed among all? These NGOs, activists and citizens then submitted a memorandum to the then RBI governor Dr Raghuram Rajan (Read: ATMs with biometric readers: Who will bear the cost: Round-table discussion)
 
Later in December 2016, Dr Usha Ramanathan, an independent law researcher, called the UID project as an attempt by technocrats to turn everyone into a customer for their financial technology-related products. We published a series of her articles (Read: Aadhaar: Private ownership of UID data- Part I  and Aadhaar: Who owns the UID database? –Part II) . “These days, we often hear the term ‘disruptive change’. However, in the case of UID, this is disruption for destruction, where ambitious persons are using every means to allot a random number to every Indian citizen whose profiles, once created, can be exploited for offering a number of services or products,” she had said.  (Read: “Aadhaar is an attempt to turn everyone into a customer”) 
 
In the meanwhile, Moneylife continue to publish several articles that pointed out several serious issues with Aadhaar and its enforcement by the government. 
 
On 28 January 2009, the then Prime Minister Dr Manmohan Singh headed Planning Commission issued a notification creating UIDAI, which failed to get Parliament’s endorsement despite repeated attempts. It functioned with Ram Sewak (RS) Sharma as its Director General from August 2009 to March 2013 under whose tenure Narendra Modi as Chief Minister of Gujarat was biometrically profiled for Aadhaar in spite of the fact that he himself had categorically questioned the legality and legitimacy of biometric data collection by Dr Manmohan Singh-led UPA government. (Read: Is Narendra Modi right in going back to Aadhaar? https://www.moneylife.in/article/is-narendra-modi-right-in-going-back-to-aadhaar/38576.html)
 
UIDAI was a creation of a Congress government under Dr Manmohan Singh and it gave UIDAI enormous power and resources without even the pretence of statutory safeguards. Mr Modi was against Aadhaar, until he became Prime Minister. After that, it took him a 15-minute meeting with Nandan Nilekani, the first chief of UIDAI, to do a sharp about-turn without so much as an explanation to the people.
 
Ironically, BJP supporters were prominent attendees at our Aadhaar seminars before 2014. But after the government did an about-turn, many of these have remained mute spectators to the government forcing it upon citizens for almost every activity from sports, to exam, birth, death, property registration, insurance or stock market transactions.  The Modi government has been pushing Aadhaar on the pretext of ‘Digital India’.  
 
Aadhaar, which is used as a tool under the Digital India movement, is ending up excluding rather than including eligible beneficiaries of government subsidies and programmes and has the potential to unleash undetectable financial crimes, was the broad conclusion of Prof Dr Usha Ramanathan and Dr Anupam Saraph. They were speaking at a seminar on “Legal issues that will arise if individual identity and biometrics are compromised” organised by Moneylife Foundation at Mumbai. (Read: How fool proof is Aadhaar? Does it serve the purpose that was claimed?)
 
On 3 March 2016, the Aadhaar Bill passed as money bill by side lining Rajya Sabha, which can only make recommendations unlike the Bill that UPA tried to pass in 2010. Aadhaar now has the much-needed legislative backing. However, unlike UPA, which passed it as a regular bill, got it reviewed through the Parliamentary Standing Committee, the National Democratic Alliance (NDA) government decided to completely bypass Rajya Sabha. All the concerns raised by the Parliamentary Standing Committee headed by Yashwant Sinha at that time, are still valid.
 
Even before Aadhaar had the backing, it had been linked to direct benefit transfer (DBT), used to check attendance in Government offices, made mandatory for matrimonial sites, added to PDS, used for passport verifications, EPFO, and sim cards by the current Government.     
 
Be it birth or death, the government had tried every trick to make Aadhaar (which still is issued to ‘residents’) mandatory for citizens. Also this was not limited to subsidies, or benefits given to the citizens. The government even tried to force Aadhaar on private services like mobiles, investments and many others. 
 
Despite the matter reaching the Supreme Court, the Modi government continued with its mission to mandate Aadhaar for everything. In fact, as stated in the apex court, the government had issued as many as 144 notifications to make Aadhaar mandatory for over 200 services or benefits. This includes those services or benefits totally unrelated with Section 7 of the Aadhaar Act for which money needs to be spent from the Consolidated Fund of India.
 
While citizens were raising several issues about Aadhaar, in a remarkable move that exposes the deep rot within the Aadhaar enrolment process, UIDAI, the agency assigned to issue Aadhaar numbers has rejected renewal request of another government company Common Services Centres (CSC) e-Governance Services India Ltd for its Aadhaar services. Interestingly, both UIDAI and CSC e-Governance Services, a special purpose vehicle (SPV) work under the Ministry of Electronics & Information Technology (MeitY). According to a 2 February 2018 newsletter from CSC, its 11,280 permanent enrolment centres (PECs) have generated 18.09 crore Aadhaar numbers with total enrolment of 26.83 crore. It has updated demographic and biometric information of 5.16 crore people. (Read: Enormous number of complaints of corruption and enrolment process violations against Aadhaar enrolment and update centres under CSC e-Gov, says UIDAI while asking its sibling to close Aadhaar services business)   
 
Unfortunately, even today, the harassment caused to citizens for not having Aadhaar or fingerprints not matching shows no sign of abating, even as the government vociferously denies any problems with the Aadhaar scheme and stoutly defends this extraordinarily invasive programme. (Read: Aadhaar’s Unabated Harassment and Disempowerment
 
All eyes are now on the five-judge Constitution Bench comprising Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. The Bench will decide whether Indians can continue to live as citizens with a right to privacy and dignity or be turned into digital slavery under the pretext of an unverified and unaudited number (Aadhaar) issued by third party vendors. 
 
 
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    Historic Aadhaar Hearing, Second-longest in SC history, Concludes
    The marathon Aadhaar hearings, the second longest in the history of the Supreme Court, after the Kesavananda Bharati case, according to Attorney General K Venugopal, concluded today. Over 38 days, the finest lawyers of India, have argued for and against the way Aadhaar is being implemented by the Modi government that tramples on the privacy and security of 125 crore people of India. This is also the first time ever, that the hearings have been shared with the public, through live tweets giving argument-by-argument account on twitter by three accounts.
     
    Today, in the concluding session, Gopal Subramaniam, Arvind Datar and KV Viswanathan concluded their rejoinders. Mr Subramaniam argued that all notifications on Section 7 of the Aadhaar Act, 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 asked about deduplication and therefore reaching the correct targeted beneficiary. “If it is indeed such an 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,” pointed out Mr Subramaniam. 
     
    “The law really does not achieve its stated purpose which is seamless delivery. The same delivery points remain under the 144 notifications. 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,” he argued. “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.”
     
    “Section 7 reinforces the asymmetry of power between the citizen and the state giving state giving unlimited power to limit citizen rights. The law lacks proper purpose. A claim to a proper purpose is not proper purpose,” he argued. He referred to the Delhi High Court local commissioner's report on how Point of Sales machines were not working at most fair price shops. 
     
    “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,” Mr Subramaniam argued. He pointed out how there is no real and effective oversight over enrollers. DY Chandrachud J (DYC) agreed to this and said in legislation such as this, we need a hierarchy of regulators. “Subsidy benefit or Service in Section 7 are words of condescension. Can all affirmative action where rights under 14, 15, 16 and 17 and 21 and Fifth schedule can be subject to a condition now?,” Mr Subramaniam asked. DYC J asked at this point “are subsidies largesse or a matter of right?“ Mr Subramaniam pointed out that this was settled in 1982 if not earlier that all of these are matters of right. Bonded labour rehabilitation now is linked with Aadhaar...contrary to the judgment in Bandhua Mukti Morcha.
     
    “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 fields. There is no common denominator in Section 7 for any proportionality analysis. Only wants to impose conditions such that all his rights are given as grant or dole by the state. That is the end of dignity.
     
    With the march of constitutionalism...the dissolution of certain identities are guaranteed. 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,” Mr Subramaniam argued. 
     
    Finally, he pointed out that no adequate justification has been offered by the government in tethering 125 crore people to their numbers. “The last study on fakes and ghosts of beneficiaries of welfare programmes was in 2007, which in turn relied on data as of 1997…The doctrine of mere possibility of misuse does not apply here because there is actual denial of rights and infringement demonstrated.”
     
    In the afternoon session, senior counsel Arvind Datar began his rejoinder by arguing that the whole Act should be declared null. He argued that proportionality test not satisfied because all data for deduplication of PAN etc are based on 2006 data. “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,” Mr Datar argued. “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!...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,” he charged.
    Mr Datar argued that “Not a single test of compelling state interest satisfied in Aadhaar. The whole Act is manifestly arbitrary. Every one of the nine privacy principles suggested by the Shah Committee of experts is flouted by Aadhaar. At a minimum, he argued for no Aadhaar for anything outside Section 7; strict scrutiny of every notification within Section 7; definite choice for opt-out; absolutely make it optional for vulnerable groups - manual labourers, farmers, old age persons. “When the government has all the data of all its citizens, the tipping point to the other side of democracy is extremely nigh and easy. 
     
    Following Mr Datar, senior counsel P.Chidambaram began his rejoinder on Money Bill. “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. No provision in our Constitution to sever and save an invalidly enacted legislation. It is not the function of this Court to save legislation that is fundamentally unconstitutional.” He concluded by stating SC does not have to deal with consequence of Act being struck down. Parliament will find that answer.  Suffice for SC to just declare this Act void. Any other decision will make a mockery of Article in 110. “
     
    Following P Chidambaram, KV Viswanathan began his rejoinder.
    He says several fundamental errors vitiate the defence by Union. Least restrictive means is a facet of proportionality. Contrary proposition by Rakesh Dwivedi, senior counsel representing UIDAI, is totally incorrect, he argued. No balancing is possible among the bundle of rights of individual. It is the 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 a negligible percentage of frauds. He also pointed out how Dwivedi's submissions refer to an overruled judgment in Mitlesh Kumari.
     
    “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. Correlative duty on state is to provide for welfare ...that burden cannot be shifted on citizens...to a technological menace. All fundamental and statutory rights related services ought to be exempted from mandatory Aadhaar...at a minimum.
     
    Sikri J asked about targeted delivery and the efficiency. KV Vishwanathan pointed out “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! Final arguments on this case came from PV Surendran Sr. Advocate.
     
     
     

     

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    COMMENTS

    gvk

    2 years ago

    For years other countries have such id card.e.g Social security card in USA or UAEID in UAE .Wondering why cry against AADHAR Card?It is duty of govt to ensure personal data is protected ,not mis-used.Strict criminal action should be taken against mis-user in super fast track criminal courts

    REPLY

    David M. Thangliana

    In Reply to gvk 2 years ago

    In India, we also have such id cards like voter id, ration cards etc. So why is there a need for another id such as aadhaar?

    Mani Sriram

    In Reply to David M. Thangliana 2 years ago

    You have ID cards which will continue to exist. But Aadhar is not identity card, but an authentication mechanism that authenticates that you physically are person you claim to be in thar ID. In this country where misrepresentation of identities are ramapant with malafide ntent, such authentication systems are a must

    Roy Aranha

    2 years ago

    it is a moral victory and our confiece in teh judiciary i strengthed with these thugs twicking rules

    Sadanand Patwardhan

    2 years ago

    Supreme Court आधार hearing ends today!
    1.2 Billion’s Destiny Rests on the Apex Court.

    - The second longest hearing in the history after the Kesavananda Bharati case.

    - Judgement is reserved today, but hopefully will be delivered soon.

    - Gopal Subramanium and Arvind Datar were incisive and brilliant in their rejoinders. Some of the legal doctrines that they invoked today with telling effect pivoted around the passing of the Aadhaar act as money bill, which prevented both Rajya Sabha and the President from reviewing it, their constitutional duty and right.
    The Doctrines referred were: of Severability, of pith and substance, of colourable legislation, etc. For further reading, to those interested, some links are provided below.

    - A crucial point Datar made about the “POWER OF LOK SABHA SPEAKER” to decide & declare a MONEY BILL, which the CONSTITUTION says is “FINAL”, is with regard to Legislature and not with regard to the Doctrine of Judicial Review.

    - The apex court judgement is going to have far reaching and transformative consequences. Hopefully, the judges are conscious of the enormous burden of nation building that rests upon them. This is probably the one and only case in the world where the court decision is going to affect DIRECTLY 1.2 BILLION PEOPLE, NOT POTENTIALLY NOR THEORETICALLY; BUT PRACTICALLY, MATERIALLY AND PERVASIVELY.

    {https://www(.)scribd(.)com/document/109063063/Legal-Doctrines-and-Principles}
    {https://www(.)clearias(.)com/indian-judicial-doctrines/}
    {http://top-topics(.)thefullwiki(.)org/Legal_doctrines_and_principles}

    Ravindra Dave

    2 years ago

    It's nothing but a dictatorial law. However if it's properly implement than atleast couruption in government schemes is 100 p.c reduced.

    Dayananda Kamath

    2 years ago

    It should be struck down. For the failure of duty by the authority to implement the programme and abusing the authority given to them you are giving them more power to further abuse and punishing the public.
    The good intentions of act being projected is not shown in action. What action has been initiated where the misuse and saving public money has been revealed by implementing Aadhaar. If you are not intend to punish the culprits who abused, what is the purpose of implementing these preventive measures. Prevention is worst than decease.
    Hope good sense will prevail. And Indian citizen is given Aadhaar a kaidi number to monitor you in open jail.
    Yes there will be further saving on jail administration cost.

    Param

    2 years ago

    a big round of applause to all the lawyers who spoke on behalf of the common man. hopefully SC will clip aadhaar's wings once & for all soon enough!

    MIGHTY BOMBER

    2 years ago

    If court decides in favour of present regime, it will be disaster for people of India. "If Bhartiya Janta Party is voted out in 2019, even a rag-tag coalition that replaces it is unlikely to repeal or dilute Aadhaar." This argument below is very important. People of India can no longer rely on ANY political party, all of them are hand in gloves to big industrialists who want to control India by dubious means like Aadhaar. The casual behavior of Congress on Aadhaar, voting machine, paper audit trail, will cause this party a lot of harm.

    Vijaykumar Kilar B

    2 years ago

    The chances of denying the right is far higher than the misuse by some minuscule population which can be controlled by other mechanism. The way Aadhar was originally made , the name and spelling mismatch is being arrogantly exploited by Banks and other such agencies to deny accounts for those who have been having accounts with them for decades. Try abuse will continue if Aadhar is made compulsory.

    #Aadhaar is increasing coercive power of the State against individuals, Shyam Divan tells the SC
    "Our constitution starts with 'We, the People of India', which suggest choice and democracy for the citizens. Does Aadhaar survive these first five words from the Constitution of India?" asks Senior Counsel Shyam Divan. 
     
    Continuing with his rejoinder before the five Judge Constitution Bench, the Senior Counsel contended that if you look at Aadhaar as a whole, it is increasing the coercive power of the State against the individual. 
     
    The Bench comprising Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan on Tuesday resumed hearing in the Aadhaar case.
     
    Earlier during his contention, Attorney General KK Venugopal has extensively cited a report, "Identification for Development' from the World Bank. In the rejoinder, Mr Divan exposed the links between people who are behind the Report and Aadhaar scheme. 
     
     
    Talking about Section 59 of the Aadhaar Act, Mr Divan contended that this attempts to validate all action before the Act was passed. 
     
    He says, "Even if this is a successful validating clause, it cannot validate actions not done by the central government, and cannot validate actions that were even ultra vires the notification. The notification made no mention of biometrics. So biometric collection before the Act cannot be validated."
     
    "Even if the notification was a Parliamentary statute, unless it specifically mentioned biometrics, collection of the same would be illegal. You cannot have collection of something as invasive as biometrics without express authority," Mr Divan contended.
     
    Justice Chandrachud wanted to know consequences if Mr Divan is right. 
     
    The Senior Counsel replied, "If this submission is accepted, all enrolments prior to the Act will have to go."
     
    Mr Divan then pointed out how Section 7 of the Aadhaar Act, in reality leading to exclusion for beneficiaries. He said, "There are 144 notifications issued by the government covering 252 schemes. First, schemes that apply to children should be excluded. Secondly, exclude schemes that are based on competitions. Thirdly, exclude schemes that have to do with rehabilitation. Fourthly, matters of food and health should be excluded." 
     
    Justice Chandrachud asked in that case, what principle should be evolved. Mr Divan pointed out to an affidavit filed by Reetika Khera on the issue of exclusion due to Aadhaar.
     
    Justice Chandrachud asked whether Section 7 could be interpreted in a way that prevents exclusion. "Whether there is any principled interpretation of words like subsidies, benefits and services that would prevent its mindless expansion," he asked.
     
    Replying to this, Mr Divan cited an example of a lawyer who was in a coma and yet how the bank threatened to cut off her pension. 
     
    Agreeing with this, Justice Chandrachud stated, "There is no question that this is an issue and that it has to be addressed."
     
    Informing the Bench about schemes under Section 7, Mr Divan said, "There is no question of subjecting children to Sarva Shiksha Abhiyaan and Mid-Day Meal Schemes. The second class of schemes is involving merit, such as painting and essay competitions for schoolchildren, for which Aadhaar has been made mandatory. This goes way beyond any conception of proportionality."
     
     
     
    Justice Sikri says that under the garb of distributing these schemes, it should not be the case that undeserving or fraudulent people get benefits. "We understand there are issues of exclusion, but there is also an issue of fraud, and how do you address that issue," he asked.
     
    Replying to this, Mr Divan said, "There must be a reasonable alternative way of identification that is allowed to an individual. For health-based schemes, I may not want to reveal that I have tuberculosis. There is a scheme called the Jiyo Parsi Scheme to increase the number of Parsis, and even for that they have made Aadhaar mandatory."
     
     
    Mr Divan then explained impact on human beings of Aadhaar Act on being passed as money bill. He said, "The Constitution has a very intricate scheme of defences for protecting rights. The last line of defense is the Court. But there are other concentric defences and bulwarks. There are two crucial bulwarks. The first is the Rajya Sabha. In the Aadhaar Act that protection has been lost. The second important bulwark is Article 111 of the Constitution (assent to bills). This protection (Presidential review and return of bills for reconsideration) has also been done away with by labelling Aadhaar Act a money bill."
     
    Justice Chandrachud also referred to his judgment on Ordinances, which used similar logic to read the Ordinances provision narrowly.
     
    Senior Counsel Gopal Subramaniam, calling delivery of public services as function of government, contended that "It is important to note that these are government functionaries. And the government cannot place the burden of its own failures on the people."
     
    "Has the State produced evidence that children want a fake midday meal or that a widow wants a second pension? It is not the beneficiaries who are cheating the system, but by functionaries of the State," he argued.
     
    Justice Sikri pointed out towards intermediaries such as fair priced shop owners. 
     
    Agreeing with this, Mr Subramaniam said, "In each situation, the victims are the beneficiaries."
     
    He then argued about Section 33 of the Aadhaar Act, related with disclosure of information. "This Section contemplates authentication records, which gives the footprint of your activities to the State. Is there a nexus between this knowledge being with the State and the delivery of public services? The answer is in the negative. This violates the requirements of the privacy judgment that the infringement be minimal."
     
    Justice Sikri pointed out that the other side had argued that because of deduplication, fakes have been weeded out. The Senior Counsel termed this claim as 'voluptuous' while sharing some data about deduplication and fakes in the Aadhaar scheme.
     
    In this case, Mr Subramaniam contended that a number has become a form of identity. "What school admissions have to do with delivery of public services. This is no more empowering or enabling, but actually disempowering. If law has the effect of disempowering people, and impairing the identity guaranteed to them by the Constitution, the Aadhaar scheme must fall," he said.
     
     
    Speaking about retrospective validation as being sought under the Aadhaar Act, the Senior Counsel said, "Retrospective validation is possible only if you had a law in the first place, and you had valid actions under that law. Here there was never any law, and there is a fundamental rights violation."
     
    The hearing will continue on Thursday.
     
    (Based on live tweets from Gautam Bhatia @gautambhatia88 and Prasanna S @prasanna_s, who each represent one of the petitioners)
     
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    COMMENTS

    Jamesdevassy

    2 years ago

    Stop mandatory ADHAAR,avoid problems at india*

    Sunil Prakash

    2 years ago

    Looking into the recent developments about 10,000 voters ID, why not the Aadhar be made the mandatory for Voting also. The owner of AAdhar will have to give his finger print and thus changes of wrong use are minimised.

    REPLY

    Ralph Rau

    In Reply to Sunil Prakash 2 years ago

    Manipulation of ballot must continue. Which political party would really want to foolproof the public mandate ?

    2 years ago

    a very important point which seems to have been missed is the tall claims of savings, wronb beneficiaries detected etc. which ar ebeing floated by various govt agencies. NONE of these seem to be validated and seem exaggerated. If there are indeed such massive savings, they ought to be reflcted in government accounts.

    Dayananda Kamath

    2 years ago

    Just because they want to prevent fraud they want such huge power to monitor you online forever. It is open jail and Aadhaar number is your kaidi number.
    Whether whatever fraud they want to prevent through Aadhaar could not be prevented without Aadhaar.
    Further their claim of 17000 crore subsidy saved. What action has been taken to recover this amount so far. What action has been initiated. That means they just want the power to monitor so that they can resort to selective prosecution to suit the powers that be.
    It is giving extraordinary power to the same authorities who failed to prevent fraud, so that they can do it more easily.
    Hope the court realises these traps and save democracy.

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