SC says it never issued any direction for linking #Aadhaar with mobile SIM
There was a bombshell of sorts during the ongoing Aadhaar hearing in the Supreme Court on Wednesday in connection with the government exhorting people to link their mobiles phones to the Aadhaar number. The government has always argued that this was being done in accordance with a Supreme Court order in the Lokniti case. Justice Dhananjay Chandrachud however, categorically stated that the Supreme Court has never issued any direction to link Aadhaar with mobile subscriber identification module (SIM) or carry out e-know your customer (e-KYC) of mobile subscribers.
 
In response, Mr Rakesh Dwivedi, Counsel for Unique Identification Authority of India (UIDAI)  and Gujarat Government admitted that the linking of  Aadhaar to mobile SIM was being done on the basis of a recommendation from the Telecom Regulatory Authority of India (TRAI) even before the order passed by the apex court in the Lokniti Foundation case (WP(C) 607/2016). This has caused a flutter on social media and among anti-Aadhaar activists since people have been constantly told that the linkage and e-KYC was based on Supreme Court orders.     
 
 
Earlier on 20 January 2017, the TRAI issued a letter (http://www.trai.gov.in/sites/default/files/E_KYC_services_Rec_20_01_2017.pdf ), to Department of Telecommunications (DOT) to ask for linkage of an Aadhaar number to each mobile number.  
 
Mr Dwivedi contended that by virtue of Section 4 of the Telegraph Act, the government has a legal basis to link Aadhaar with mobile SIM. He says, "My submission is that the Government had a legal basis to link Aadhaar with mobile SIM by virtue of Section 4 of the Telegraph Act. Also, the measure is reasonable in the interest of national security."
 
While reading out the DoT notification about re-verification of mobile numbers using e-KYC process, the Senior Counsel said this was part of the license agreement and claimed that 'Section 4 proviso of the Telegraph Act gives exclusive power to the Central government to decide license conditions'.
 
"Aadhaar and mobile SIM linking helps in ensuring that SIM card is given to the person who is applying for it. This is a legitimate state interest," he contended.
 
The Bench comprising Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan on Wednesday resumed hearing in the Aadhaar case.
 
Additional Solicitor General Tushar Mehta requested for a small submission. Contending that Rules have the backing of the Act, he said, "Authority of law phrase in Section 300A gives the power to the legislature to link Aadhaar with bank account under PMLA. The PMLA rules have the backing of the PMLA."
 
"A statutory rule is akin to law under Article 300A of the Constitution. The parliament cannot every time amend the law (PMLA) for example in respect of money laundering. Therefore a wide statutory network is provided and power is given to the rule making authority," Mr Mehta contended.
 
Senior Advocate V Giri wanted to appear on behalf of State of Kerala to argue on legislative competence. However, the Bench was of the view that states cannot challenge a statute from the Central Government. The Bench asked Mr Giri to submit bullet points on what he wants to argue and then it will decide if he can be allowed.
 
Senior Advocate Jayant Bhushan appearing for Reserve Bank of India (RBI) said that following changes in the PMLA Rules, the central bank had no option but to amend its master circular. He said RBI has issued the master circular by virtue of its power under the Banking Regulation Act and PMLA Rule 9(4) provides that Aadhaar has to be submitted to reporting entity.
 
 
Earlier during the day, Mr Dwivedi claimed that the central government has no access to UIDAI's data as the Authority is an autonomous body and hence no surveillance is possible.
 
He reiterated that proof of concept studies happened with respect to Aadhaar and biometrics. "Only in the last two years, enrolment shot up from 60 crore to 100 crore after the Aadhaar Act was enacted. In the beginning when Aadhaar was a scheme, Aadhaar technology was just being tested and there were hardly any enrolments that time," Mr Dwivedi contended. 
 
Showing a credit card statement to the Bench, the Senior Counsel said that banks have a record of all transactions made by an individual including the place of transaction. "Nobody is questioning what banks and telecoms are collecting. The single target is Aadhaar," he said.
 
 
Mr Dwivedi said, "It is doubtful that an RE that collects data and transfers that data without any other data has any value. Also REs do not have authentication records."
 
Showing a list of entities that require one time authentication and those that require authentication every time there is a transaction, the Senior Counsel for UIDAI contended that most entities require authentication once and therefore there is no way to surveil people 24x7.
 
(Based on live tweets from @SFLCin)
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COMMENTS

Param

7 months ago

i find this ridiculous! how come SC was not aware of this misrepresentation for almost a year? should this not have been one of the first things to be pointed out when the case came up for hearing? what happened to 'suo moto'?
of course, in parallel, govt's attitude is hilarious as well. when pushed to a corner, AG says SC cant interfere with administrative decisions about aadhaar. if that is the case, why was it not raised on the first day of the hearing?

REPLY

M S Prabhakar

In Reply to Param 7 months ago

The trouble is with the wordings of the original SC Order. According to SC Order in Lokniti Foundation v Union of India, “...You should start process to ensure 100 % identification. Tell us how do we start it? You have the best of experts. Put in place a process by which mobile subscribers are subjected to scrutiny as to ensure appropriate identification...”.

When SC acknowledges the government as "...You have the best of experts. Tell us how do we start it? ...", the government laughed its way into forcing Aadhaar down people's throats!

jaideep shirali

7 months ago

I would have been glad as a citizen if the Supreme Court had put the Telecom Minister in jail for atleast a day for contempt of court, because the Govt has merrily threatened citizens with Aadhar, even where there is no benefit for the citizen. This govt obviously wants to shove Aadhar down everybody's throat, with no questions to be asked, and the reason is anything, but genuine use of the facility. The arguments in the SC make that clear.

Dayananda Kamath

7 months ago

Does that mean all the services and benefits given to the people before Aadhaar are not the people. Supreme Court should ask every authority to submit all their notifications linking Aadhaar since its inception.,as well as after filing of the petition, and how this armtwisting has increased linking and that being taken as support of people to Aadhaar. And suomoto intimate perjury and contempt of court as well as misleading people in the guise of court order
That will such actions in future.
This makes Aadhaar to be scrapped as abinitio it is brought without legislative authority.

Param

7 months ago

"UIDAI does not have that kind of algorithms." - how can this statement be trusted at all? can they show what algorithms they have? can they certify that any changes to algorithms will be open to public debate? what's the point in people without expertise in technology making these arguments in the court!

M S Prabhakar

7 months ago

According to SC Order in Lokniti Foundation v Union of India, “...You should start process to ensure 100 % identification. Tell us how do we start it? You have the best of experts. Put in place a process by which mobile subscribers are subjected to scrutiny as to ensure appropriate identification...”

If you read the order carefully, it would show that it is silent on the verification of the existing post-paid subscribers of the mobile phones. The pre-paid customers, when they seek renewal of their connections, and the fresh applicants for mobile...

SuchindranathAiyerS

7 months ago

We now have proof, courtesy the Supreme Court, that the Modi-Prasad-Jaitley-UISAI Cabal is a bunch of liars.

#Aadhaar is not about free flow of data, but no flow of data, claims Rakesh Dwivedi before the SC
“Aadhaar is not about free flow of data, but no flow of data,” says Senior Counsel Rakesh Dwivedi, representing Unique Identification Authority of India (UIDAI) and the Government of Gujarat during the Aadhaar case hearing before the five-judge Constitutional bench headed by Chief Justice Dipak Misra. 
 
Citing the European Union’s (EU) General Data Protection Regulation (GDPR), Mr Dwivedi said, "The whole purpose of the EUGDPR is to balance free flow of data with data protection. However, we are not doing that with Aadhaar. Aadhaar is not about free flow of data, but no flow of data. This has no bearing on Aadhaar, and in any case, the Srikrishna Committee is handling it."
 
The Bench comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan besides the Chief Justice on Tuesday resumed hearing in the Aadhaar case.
 
Justice Chandrachud pointed out that the EUGDPR envisages a ban on biometric data processing. 
 
The Senior Counsel replied that there are exceptions and state laws can provide for them with appropriate safeguards. Reading out the exceptions, which include legitimate State interests with appropriate safeguards, Mr Dwivedi said member States have been left free to make laws.
 
Justice Chandrachud asked if that is the test of proportionality. Mr Dwivedi said that he was not disputing it.
 
 
The UIDAI Counsel also claimed that in public sphere, the Right to Privacy is diluted. He said, "The entire Aadhaar activity is in the relational and public sphere. Demographic information and facial photograph do not have any privacy concerns. There is no reasonable expectation of privacy. At the requesting entity point, it is all dispersed and decentralised, and so it does not deserve the level of protection that the CIDR is given."
 
Justice Chandrachud said that the point seems to be that core biometric information has higher privacy concerns, which does not mean there is no privacy concern elsewhere.
 
Mr Dwivedi, the Senior Counsel, also claimed that UIDAI collects only 'limited technical metadata'. 
 
To this, Justice Chandrachud asked whether it was necessary to retain metadata and why UIDAI need to retain it. 
 
Mr Dwivedi said, "It is important to exercise control over the registrars and enrolment agencies (RE). There is no data about location or purpose of transaction, but only about the system, and that is required for audits."
Justice Sikri wanted to know whether UIDAI is not collecting metadata about the person but only about the machine. Mr Dwivedi replied in affirmative.
 
 
Earlier, Mr Dwivedi informed the Bench that the draft for data protection law will be out in May this year. 
 
Justice Sikri pointed out there are instances where damage needs to be proved and said he was not sure if it would pass the adequacy of privacy test.
 
When Justice Chandrachud asked if there are any consideration of remedies for breaches in the Aadhaar Act, the Senior Counsel, said, "The Information Technology (IT) Act provides for penalties, and they have imposed penalties on some entities like Airtel."
 
Chief Justice Misra observed that offences are one way but there are no monetary compensation under the Aadhaar Act. 
 
 
The Senior Counsel contended that the UIDAI has provided a complete bar on sharing, and what is available with the REs is totally dispersed. The extent of privacy is much more diluted. And there is consent and a bar on using for anything other than authentication, he added.
 
Mr Dwivedi contended that the Court and the government should work in coordination as the two great wings of State, and not in opposition. "The sword should be unsheathed only in the last resort. My lords should save as much as possible of the Act. Doctor's approach."
 
In the morning session, the Senior Counsel of UIDAI, contended that we do not have to go to Europe for proportionality because India developed the test in 1952 in the VG Row's case. He said, "Indian Supreme Court has never accepted the requirement that a restriction on fundamental rights be least intrusive."
 
While the Bench was rising, Senior Counsel Shyam Divan stood up and said that he had a point of information. He said, "The State cited the case of VG Row, which first laid down the principle of proportionality. Mr Row's son, SG Vombatkere, is one of the petitioners in this Aadhaar challenge."
 
(Based on live tweets from Prasanna S @prasanna_s, and Gautam Bhatia @gautambhatia88, who represents one of the petitioners each in this case)
 
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COMMENTS

Mahesh S Bhatt

7 months ago

Counsel please understand systems are prone to rape then politicizations then poor policing substandard Legal support & poor Judgement The Acussed goes scott free for next rape Mahesh Bhatt

#Aadhaar: “Privacy is a small price to pay for ensuring life and the rights,” UIDAI Counsel Rakesh Dwivedi tells the SC
The five-judge Constitutional bench headed by Chief Justice Dipak Misra, comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan on Thursday resumed hearing in the Aadhaar case.
 
Senior Counsel Rakesh Dwivedi, representing Unique Identification Authority of India (UIDAI) and the Government of Gujarat, told the Bench that privacy is a small price to pay for ensuring life itself and also the rights under Article 21 of the Constitution.
 
 
The Senior Counsel contended that larger public interest and interest of the collective is the guiding factor when there is a conflict of fundamental rights, especially when it is within the same article. He said, "All data collected by Aadhaar is basic data and collected almost everywhere, including at bank, bar council, and university.  No reasonable expectation of privacy against collection of demographic data."
 
Justice Chandrachud asked if Mr Dwivedi if arguing that there is no reasonable expectation of privacy in demographic data because it is already in public realm. The Senior Counsel agreed with this. 
 
 
Talking about rights, Justice Chandrachud commented that conflict can arise not between two individuals but even for the same individual, conflict between two rights. "This Court had never accepted the suppression of civil liberties at that ground." he said.
 
Mr Dwivedi contended that Aadhaar is not suppression of civil liberties.
 
 
He also contended that what is being done under Section 7 of the Aadhaar Act covers human rights of a lot of people of our country. "This court should act as a sentinel to ensure that Right to Privacy is balanced with all the other rights under Article 21 that Aadhaar covers."
 
Citing a 2017 case (Indu Devi vs State of Bihar) where a lady wanted an abortion but the Court ruled that she cannot since having an abortion was a risk to her life, the Senior Counsel opinoed that in this case the lady's right to choose was balanced against her right to life.
 
Quoting Nobel laurate Amartya Sen, the Counsel for UIDAI contended that development requires the removal of major sources of un-freedom, poverty as well as tyranny.
 
Chief Justice Misra commented, "Liberating people from un-freedom (poverty) is at one end of the spectrum and right to privacy is on the other."
 
Justice Chandrachud told Mr Dwivedi that as per UIDAI's contention Aadhaar is a means for identification and the only caveat to that is that there should be no exclusion.
 
 
There was no hearing during the second half. Next hearing in this matter will take place on Tuesday.
 
(Based on live tweets of Prasanna S @prasanna_s, who is representing one of the petitioners and @sflc.in)
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COMMENTS

Ashok Senniappan

7 months ago

In a country where our executives are ready to any thing ,in the interest of the nation it is good to have Aaaddar no so that at least 90% of the money ment for the poor does to the
deserved ones.

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