Datar was responding to the Attorney General’s argument that Aadhaar being made compulsory should not be an issue.

Darkness doesnt come all at once Anti-Aadhaar lawyers dire warning as SC hearing endsImage for representation only.
news Aadhaar Thursday, May 04, 2017 - 20:11

Summing up what has been a highly charged hearing on Section 139AA of the Income Tax Act, which makes it mandatory to link Aadhaar with the PAN card, senior counsel Arvind Datar quoted writer William Douglas to say, "Darkness does not come all at once. It is in the twilight that we must be most vigilant, or we are lost."

Datar was responding to the Attorney General’s argument that Aadhaar being made compulsory when 99% of the country already had it should not be a problem. Datar said that it was in such arguments that the death knell of individual rights and democracy was sounded. He added that the government had begun from a position that Aadhaar was voluntary, but was proceeding step by step to ensure that it become completely mandatory.

A Supreme Court bench comprising Justices AK Sikri and Ashok Bhushan was hearing two petitions against the Centre’s move to make Aadhaar numbers mandatory for applying for PAN cards and filing income tax returns, which the government had inserted into the I-T Act through the Finance Act 2017.

The two petitions had been filed by Kerala CPI leader Binoy Vishwam, and Magsaysay awardee and social activist Bezwada Wilson and retired army officer SG Vombatkere.

Linking PAN cards to Aadhaar

Attorney General Mukul Rohatgi had justified the move at an earlier hearing on April 21 by saying that PAN cards were being linked to Aadhaar numbers because a very large number of fake PAN cards were being used to divert funds into shell companies.

Appearing for Vishwam, senior advocate Arvind Datar argued on April 26 that the mandatory linking of PAN cards with Aadhaar was discriminatory since it only applied to individuals and not other classes of tax assessees like partnerships and companies. Datar also argued that since the PAN card was required as an identificatory document for many other transactions, its invalidation could result in the “civil death” of individuals, and violated the right to Freedom of Trade guaranteed in Article 19(1)(g).

Voluntary or mandatory?

Datar also criticised Section 139AA as violative of the government’s undertakings to the SC to keep Aadhaar voluntary. To AG Rohatgi’s objections that these only applied prior to the passing of the Aadhaar Act, he also pointed out that the I-T Act could not make Aadhaar mandatory when the parent act, The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016, made it entirely voluntary.

Taking up the argument the next day, Shyam Divan, counsel for the other two petitioners, laid out a meticulous argument from the perspective that informational self-determination (the right to decide what information about oneself could be given out) was an important component of bodily integrity and personal autonomy.

In doing so, he carefully avoided any mention of the right to privacy.

This sidestep, as the sidesteps of Datar’s arguments, became necessary as a batch of petitions regarding right to privacy have been pending before a yet-to-be-constituted Constitutional bench of the Supreme Court, and the current bench would not allow arguments from privacy.

‘Individuals don’t have absolute right to their bodies’

Divan argued that it was the right of the individual to decide if he or she should part with personal, bodily data, and any mandatory extraction of such information was a violation of a person’s bodily integrity, one of the rights guaranteed under the Right to Life in Article 21 of the Constitution.

Calling mandatory biometric extraction “totalitarian”, Divan asked if the state could be allowed to put an “electronic leash” on people, and whether the relationship between the individual and the state would stay the same if the state knew everything about its citizens from birth.

Divan also argued that mandatory Aadhaar violated the Right to Freedom of Speech and Expression, since it was akin to making a person speak against himself. Divan brought in Article 14, in a different sense from Datar, arguing that within the common pool of all persons willing to pay taxes, the I-T Act unfairly discriminated against persons who refused to give up their biometric information.

On Monday, Rohatgi responded to the petitioners’ arguments by stating that citizens did not have absolute rights over their bodies. Bringing up examples such as regulation of abortion, death sentences and even breathalyser tests, Rohatgi argued that the law allowed the state to intervene into citizens’ bodies in various ways. The court responded that the case pertained to taxation law and not to criminal offences. To this, Rohatgi responded that the law allowed extraction of fingerprints, blood samples and even DNA for criminal cases, and there was nothing wrong in extracting biometric information for the purpose of curbing tax evasion and black money.

Is Aadhaar ‘indirectly mandatory’?

Rohatgi also argued that the voluntary nature of Aadhaar had been transformed with the passage of the Aadhaar Act, with sections 7 and 54 of the Aadhaar Act making it mandatory for people to obtain Aadhaar. He also argued that Section 139AA of the I-T Act was consistent with Section 139A which had introduced PAN cards, since PAN cards alone were found to be a weak verification mechanism, and only biometric information was foolproof.

However, in his counter-argument, Divan argued that there was nothing in the Aadhaar Act that made it mandatory. In regard to Section 7, he argued that it only applied to subsidies and benefits and could not be applied to paying taxes. He also pointed to sections of the act that spoke of consent, thereby showing that the Aadhaar Act had conceived of Aadhaar as purely voluntary.

In his final arguments, Datar argued that Parliament had indirectly made Aadhaar mandatory through the I-T Act, and had not set aside the SC’s order that it should remain voluntary. He also argued that Aadhaar was being offered as a panacea for all ills from black money to terrorism to leakages in welfare programmes. On the issue of fake PAN accounts, he argued that only 0.4% of PAN cards were found to be fraudulent and it was unfair to make it compulsory for the entire population on such a small basis.  

The Supreme Court had passed an interim order in August 2015, in which it said that Aadhaar had to remain purely voluntary, and could not be made mandatory until the Supreme Court had finally decided on it. However, the SC is yet to form the larger Constitutional Bench that is to hear numerous petitions objecting to Aadhaar on the grounds of right to privacy.

In September 2016, after The Aadhaar Act was passed, the court reaffirmed its stand on the voluntary nature of Aadhaar when hearing a petition against making Aadhaar mandatory for certain scholarship schemes. The court had directed that the offending provision be removed and asked the Centre to explain why it had included it even though the court had given its direction.

However, in the past few months, the Narendra Modi-led government has brought a growing number of schemes under the Aadhaar net, finally leading up to linking Aadhaar and PAN cards. A bench of the Supreme Court had said in March that Aadhaar could not be made mandatory for welfare schemes. However, it also said that the government could not be stopped from linking Aadhaar for non-benefit schemes like filing income tax returns and opening bank accounts.

Main image courtesy: Wikimedia Commons/Biswarup Ganguly. 

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