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The hearings pertaining to the constitutional validity of Aadhaar Act continued on the second day. Senior Advocate Shyam Divan started the arguments again reiterating his stand on the hacking of Aadhaar data and cited some affidavits by security system specialist before the Supreme Court constitution bench of Chief Justice Dipak Misra and Justices A M Khanwilkar, Adarsh Kumar Sikri, D Y Chandrachud and Ashok Bhushan.

Here are the arguments that went on Wednesday (January 24):

11:47 am: Shyam Divan starts the arguments by asking: “Registrar may be a PSU, private bank etc., which means its BJP, the central government. There is just a MoU between the Registrar and central government. It’s not even a binding contract. Registrar is working under what authority?”

11:48 am: Which means it’s not the central government?” tells Divan.

11:50 am: Justice Chandrachud questions: “Were private players into the picture prior to the statue?”

11:54 am: “How do you deal with data breaches before the enactment of the act?”

12:06 pm: Divan answers: “I’m compelled to speak to private party regarding my information. Mandating Aadhaar violates dignity and autonomy. Sovereignty of an individual is the crux of our constitution. The state is pervasive, the situation will be flipped if this process is to follow, ideally the state should be transparent, under this process an individual is being forced to be transparent. All the information can be used against an individual in the court of law as per the statute, emphasising on criminal cases, what happens to the right to not be a witness against himself?”

12:12 pm: “Only 0.3 per cent benefitted from this process, as others already had an identity proof. Developers are foreign entities who are authorised to extract the information. Agreements have been submitted to that regard,” Divan tells bench.

12:47 pm: Divan cites Prisoners Act 1920 and apprises that even a decade old act regarded protection that of a prisoner, regarding his fingerprint, picture, measurement etc. and now this whole Aadhaar process has been started without even a proper statute.

Countering the arguments of Divan, ASG replies: “Preventive detention under Section 107, whether it pertains to maintain public order or law and order. For example, if a quarrel between husband and wife breaks out, will it come under 107.”

3:10 pm: Divan cites one affidavit from a security system specialist which states that the process is not reliable. Security system specialist demonstrated the flaws to UIDAI itself, submits Divan while reading the affidavit. “Without the knowledge of the UDAI, the third party making the software and hardware overseas may have embedded trojans, back door channels etc. to extract information in the database, this arises a situation of national security,” states Divan.

Justice Chandrachud replies: “Today no system is safe.”

3:15 pm: Section 73 of stamp act, high court AP struck down the provision for being too pervasive, submits Divan. “We are not living in a police raaj,” submits Divan commenting upon the surveillance state the government will become.

3:40 pm: Diwan refers to United States vs. jones, in which it is stated placing a GPS in respondent’s car is invasion of his privacy   

The bench adjourned the hearing to January 29.

—India Legal Bureau

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