Prasanna S Profile picture
Sep 26, 2018 36 tweets 4 min read Twitter logo Read on Twitter
#Aadhaar judgment. Thread. Will be tweeting opinions as they are pronounced. Final conclusions based on majority will be clear only at the end of the thread.
Waiting for the Bench to assemble.
Bench has assembleed. Judgment is voluminous.

First judgment is by Justice Sikri. CJI and Khanwilkar J have concurred with him. DYC J and Ashok Bhushan J have written separate opinions.
Sikri J extolling the virtues of "uniqueness".

How the word Aadhaar has completely dislodged the hindi dictionary meaning for Aadhaar by the Id provided by UIDAI.
Sikri J: Structure of Act reveals UIDAI is a statutory body for assinging unique numbers and authentication. Uniqueness based on submission of demographic and biometric data submission to uidai.
Sikri J: Challenges on the ground of FR violation and violation of constitutional values. Violation of privacy. Surveillance state.
Sikri J: Response of Govt of India based on minimality of data collected. Aadhaar enrolment process foolproof. Same foolproofness at the time of authentication.
Sikri j: Response by GoI also claims authentication is on minimality of data...not even purpose is collected. Profilin not possible. Cites the ppt by Dr. Pandey.
Sikri J: Fundamental difference from UID and other IDs. Uniqueness of UID is the difference as claimed by GoI.
Sikri J: Empowers marginalised section of societies as it gives identity to such persons.
Sikri J: Validity of Act is also tested on manifest arbitrariness challenge also which was rejected in Binoy Viswam.
Sikri J : On the doctrine of proportionality and the right to privacy, the important part of the challenge. Says the judgment discusses privacy case extensively and follows it.
Sikri J: Question on whether strict scrutiny or just fair and reasonable standard to be adopted in testing constitutionality of laws. Says Puttaswamy leaves that open. And that this judgment had adopted the latter standard.
Sikri J: Respect grounded in human dignity is exposited in the judgment. Also discussed is dignity not only in reference to individual but also dignity within the community.
Sikri J: We follow the "larger public interest" as against the "compelling public state interest" test.
Sikri J: We have framed ten issues.

Issue 1: Does Aadhaar create a surveillance state and therefore unconstitutional?
Issue 1 Conclusion: Minimality of data and safeguards as explained by CEO Dr. Pandey noted including all security measures.
Issue 1 conclusion: Profiling not possible using aadhaar. Sufficient safeguards to disallow it. However some provisions are struck down.
Five year rule for archival storage of transaction logs is struck down.

Metadata storage is struck down.

33 (1) is read down to afford an opportunity for data subject to be heard.
National security exception under Section 33 is struck down. Lays down that Joint secretary mechanism is arbitrary and requires a judicial warrant.
Section 57 struck down. Private companies cannot insist on Aadhaar.
Issue 2: whether Aadhaar act violates right to privacy. Says they have examined only Section 7 and 8 for this purpose.
Issue 2 conclusion by Sikri J:
Purpose of the Act is legitimate.
Rational connection to purpose is satisfied.
Balancing test satisfied by the Act insofar as Aadhaar only collects minimal data.
On Exclusion, probabilistic method etc - Sikri J holds that such Exclusion is concerning - but inclusion is the purpose of the Act, and if we have to throw out the full Act on that ground it would be throwing the baby out with the bathwater.
Sikri J cautions that the court is not trivialising exclusion but has taken on record the statement ot AG that noone will be deprived and have also provided guidelines to prevent and minimise exclusion.
Sikri J: Suitable provisions to be made in regulations for establishing id when aadhaar auth fails.
Sikri J: CBSE NET cannot make Aadhaar mandatory.

Sikri J: enrolment of children only with parental consent. They should be given an option to exit on attaining majority.
Sikri J: Sarvasiksha Abhiyan etc and other schemes incident on Aadhaar cannot make Aadhaar mandatory. But can insist on enrolment number with parental consent.
Sikri J: section 2(d) read down to not include meta data of transactions.
Sikri J: 2 (b) definition of resident to exclude illegal immigrants.

Section 29 is upheld as valid. However regulations may be challenged later. But the current regulations are valid.
Section 33 (2) struck down as mentioned above.
Section 47 struck down and says even individuals must be entitled to file complaints.
Section 57 struck down to the extent that "any purpose" should mean any purpose backed by law as far as state authorities are concerned.

Fully struck down qua private entities.
Money Bill issue: Aadhaar Act could have been passed as a Money Bill.
Section 139AA of the Income Tax Act upheld.
PMLA Rule providing for mandatory Bank account and aadhaar bank linking is struck down as unconstitutional. Does not satisfy the test of proportionality.

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More from @prasanna_s

Sep 29, 2018
Does the Union Government have to direct the telecom service providers to delete biometric and Aadhaar details of their customers following the #Aadhaar judgment? A short thread.
1. We all know that the judgment had three separate judgments. One by majority of Sikri J writing for himself, CJI Misra and Khanwilkar J.
There was a minority judgment by Chandrachud J which was partly concurring with Sikri J
and another partly concurring judgment by Bhushan J
2. On the question of illegality and unconstitutionality of the telecom-Aadhaar linking exercise, all the five judges agreed and struck down the exercise and the 23rd March 2016 circular of the DoT as unconstitutional.
Read 11 tweets
Sep 26, 2018
#Aadhaar Judgment continued
(Sorry the earlier thread no longer loads for me on twitter).

DYC J has penned a partial dissent.

DYC says this is a seminal case that poses questions on democracy, power and liberty and constitutionalism.
DYC J overrules earlier judgment on money bill whether or not speaker decision is subject to judicial review. Elaborate discussion of rule of law and judicial review. Sikri J agrees on this point.
However DYC J holds that Aadhaar cannot have been a money bill. Not even Section 7. Passing a Bill which is not a money bill as a money bill a subterfuge and a fraud on the constitution. This is a dissent from Sikri J view.
Read 28 tweets
Aug 18, 2018
Thread. The Delhi Govt yesterday pulled up by the Delhi HC for not implementing several mandatory provisions of the Food Security Act, letting thousands go hungry in the national capital.…
The Government had no explanation whatsoever in completely defaulting on not only the statutory mandate of implementation of NFSA before July 2014, but also an order passed by the Court on 01.09.2017!
The Govt told the Court that their main concern was that the benefits meant for Delhiites should not be cornered by migrants! The Court rejected that contention as completely irrelevant for compliance and sought a plan of compliance within two weeks.
Read 5 tweets
Jun 25, 2018
Too much noise over the weekend trying to suggest that the modern left has to be more accommodating of the right so that the right does not become more reactionary. Some thoughts/rants. 1/
It is only recently that the left has started reclaiming its mainstream space. It has started ignoring the don't-wake-up-your-neighbour type warnings. (IMHO, obviously) 2/
The reactionary right is not some fringe or a small minority or a vulnerable group that we should guard against further marginalization or condescension. They are the ones in power now. Almost everywhere in the world. They set the narrative. They are the mainstream. 3/
Read 13 tweets
May 16, 2018
There is not one flaw in India's constitutional democracy that the present regime has not exposed or exploited:

1. Office of the Governor;
2. Judges appointments;
3. Appointments to other institutions and tribunals;
4. The virtual unassailability of the decisions of ...1/
...the speaker of assembly or Loksabha(Money Bill/ Disqualification for defection; not allowing the introduction of no confidence motion);
5. The office of VP and his powers over removal of judges;
6. Finance Commission
7. Post retirement posts.

Etc. Etc. 2/
These structural flaws are obviously pre-existing and we have had proofs of concept demonstrated to us before. What we are seeing now though is exploitation of each of those flaws at once with absolutely no sense of shame or apology. 3/
Read 6 tweets
May 10, 2018
#DestroyTheAadhaar is the primary prayer of the Petitioners. That case has now been made before the final adjudicating body in the country. The fate of the only such project in any democracy that sought to fingerprint its entire population, hangs in the balance.
Many people to thank. Profusely. First, the Petitioners. All distinguished citizens and indefatigable champions of civil liberties. @sgvombatkere @BezwadaWilson @mathew111938 @nikhilmkss @vvcrishna @gnowgi @ramakumarr, Aruna Roy, Shantha Sinha, Dr. Kalyani Menon Sen, ...
M.G.Devasahayam, Thomas Franco, Sam Rajappa, Nachiket Udupa etc. And those that helped enormously with material that formed sworn affidavits before the Court- Prof. Reetika Khera, Prof. Jean Dreze, @anumayhem , @samirkelekar , Dr. Rakesh Goyal, @iam_anandv, Dr. Yogesh Jain ..
Read 11 tweets

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