Aadhar Hearing Day 23: Attorney General responds to questions by the petitioners through the Power-point Presentation [Read Responses]

AG started his arguments before the Constitution bench for the 23rd day of the Aadhar hearing by responding to the 20 questions asked by Petitioners.  First response was to the question on authentication failures. He stated that the state level data was not available because authentication transactions don’t track locations. He alleged that biometric failure rates were 6% for fingerprints and 8.54% for iris at national level. His second response was on biometric exception handling for people who do not have biometric etc and claimed that QR code on the aadhaar letter was one such exception handling mechanism. His third response mentioned that there had been no field level studies for audit of exception registers etc. “There is a circular dates 19.12.2017 advising all entities to never deny anyone service” he said. The fourth response related to parental consent for children.”Parents have to sign the enrolment forms for children” he claimed.

Sikri J and Khanwilkar J wanted to know if there were surprise checks etc. DY Chandrachud J stated that it was not for Dr. Pandey but for the government to satisfy the Bench on the implementation as it was experienced in the field.

Coming back, the AG stated that the for fifth question, the response was that Aadhaar opt-out was not possible.”Even for children who are enrolled after they attain age of consent, there is no opt- out” he claimed. Next question was about biometric deduplication rejects. He stated that there were at least 6.7 crores as of 21.03.2018 but all of them were duplicates. Intervening in between the CEO UIDAI alleged that  not one genuine person had complained that he had been denied an aadhaar number despite attempts to enrolment. Next question was whether there had been a field study or verification of enrolment rejections. To which the AG replied in negative. His next question was on “any other response” in Section 8 (4) to which he replied that EKYC was the answer to it.

Moing further to his next question on UIDAI taking responsibility of details including demographic data entered in enrolment and verification of documents. He replied that it was the responsibility of the Registrar and UIDAI was not at all responsible for it. The next question was on Biometric match being probabilistic. “Because it is 1:1, it is NOT probabilistic” AG responded. The next one was whether ASAs or AUAs may maintain logs relating to purpose of authentication and location. Yet again the CEO UIDAI stated that they stored according to their convenience and their regulations and the UIDAI had no purview.

The AG rounded up saying Aadhaar implementation may require some improvement if any here and there, but Aadhaar itself cannot be struck down on that ground. “It is now here to stay for all times to come” he argued. He then referred to 2013 Registrar Handbook which had a section of offline v online authentication and superiority of Aadhaar over something like smart cards. He argued that a well considered policy decision had been taken at the highest level.” Not for Courts to then interfere” he alleged.

AG then moved to his justification for privacy violation under the Puttaswamy standards. He stated that the Aadhaar passes both the Chandrachud and SK Kaul test. He claimed that the law existed along with a legitimate interest.  Thirdly, he stated, the law also passed the test of proportionality. “There is reasonable nexus between the means adopted and the object sought to be achieved” he claimed. “As long as the law cannot be adjudged to be invalid merely on the ground that its implementation is unlawful.”he added


Moving further the AG continued saying, “As minimum an invasion as possible, of privacy under the Aadhaar project. For the objectives of the Act, the mechanism of the Act is the least invasive alternative. An enormous exercise involving a huge outlay of funds cannot be struck down all as waste for a few petitioners complaining.” He then read from the Puttaswamy, 9-judge bench judgment, Part R and S of DY Chandrachud J judgment.

The Bench then rose for lunch

The afternoon session was delayed for a bit because the AG was appearing in the SC/ST Act case. The AG then continued reading Chandrachud J’s plurality opinion in the right to privacy judgment. He read out the part of Justice Chandrachud’s judgment that referred to the Srikrishna Committee report on data privacy. He claimed that whatever more has to be done on data protection will be done by the Committee. He stated that the UIDAI CEO was on the committee. The AG further told the Bench that the Srikrishna Committee Report will be ready by May 15. He said that in the privacy judgment, other opinions, such as those of Chelameswar and Bobde JJ,  have recognised that privacy is not absolute, and there are legitimate state interest that can override it.AG argued that the “just, fair and reasonable” standard would apply to adjudicate the validity of laws that were claimed to infringe privacy.

AG then read out Justice Nariman’s opinion from the privacy judgment, which stated that whichever article is applicable in a particular case of privacy, the corresponding restrictions will apply, and ultimately the Court must undertake a balancing exercise. He also cited the Right to Information Act as a reasonable restriction on privacy in the larger public interest. He then referred to various passages from Justice Kaul’s judgment in the privacy case and read out the part of Justice Kaul’s judgment that lays out the proportionality standard for adjudicating infringements on privacy. He also referred to  the conclusion of the nine judges in the right to privacy judgment. He claimed that this was the totality of the judgment, and he would now apply it to the Aadhaar Act.

“The right to privacy judgment says that privacy is a fundamental right under Article 21, and therefore subject to the limitations of the same article. The lead judgment of Chandrachud J says that existence of law, legitimate state interest, and proportionality, are the tests  to be applied to judging a privacy violation.  The test of proportionality is to be applied. So the petitioners have to establish that the tests have not been satisfied.” Said AG

Moving further he said, “The Aadhaar Act meets the standards and has adequate safeguards. The Aadhaar Act is a just, fair, and reasonable law. It is in pursuance of a larger public interest, including preventing dissipation of social welfare benefits, prevention of black Money and money laundering prevent income tax fraud, and lastly, prevent terrorism by linking with SIM cards.” He added that the SC cannot second guess the value judgment of the legislature since all these were legitimate State interests.

“ Aadhaar Act satisfies the test of proportionality by showing a rational nexus between the means and the goal” the AG argued before the bench. He alleged that all the subsidies under Section 7 were a part of the right to a life with dignity, and will prevail over the right to privacy. “When people applied for Aadhaar before the Act, they knew it was voluntary, so there’s no question of violation of rights. Before the privacy judgment, there was no question of the government or the people knowing that there was a right to privacy” remarked the Attorney General. However Justice Bhushan and Justice Chandrachud objected to this argument of AG.

The AG reiterated that before the privacy judgment, the government could not proceed on the assumption that there existed a fundamental right to privacy. Justice Chandrachud remarked that the right to privacy judgment declared that all judgments for forty years that had upheld the right to privacy were correct.  However the AG argued that those judgments were per incuriam because there were larger benches that had held there was no right. The CJI disagreed with this argument.

The Bench then rose for the day.

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