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Legally Explained: SC challenge to Aadhaar so far, and how on Day 2 Shyam Divan infused new energy into the case that is NOT about privacy - or is it?

To Aadhaar or not to Aadhaar? The SC is not entirely sure right now and it could go either way...
To Aadhaar or not to Aadhaar? The SC is not entirely sure right now and it could go either way...

As the challenge to compulsory Aadhaar identification to file IT returns was heard by the Supreme Court for the second day today (27 April), the mood among the anti-Aadhaar activists has been upbeat.

The reason for their confidence about the outcome is petitioners’ counsel, Shyam Divan, and his brilliant exposition of their challenge to Section 139AA of the Income Tax Act, which makes Aadhaar number mandatory for filing IT returns.

Today, Shyam Divan completely transformed the atmosphere in Court No8 before the bench of Justices AK Sikri and Ashok Bhushan, from what appeared to have been a losing battle following the bench’s open deference to ‘Parliamentary wisdom’ in enacting Section 139AA, to one of clear articulation of grounds of challenge, which seems like it will be hard to assail by the respondents.

So, despite the Aadhaar ‘mother’ case pending before a Constitution Bench (to decide whether a right to privacy exists in India), the SC’s two judge bench, seems to have now begun hearing its child, if we put it that way?

Yes, in a way. The Centre was obviously relaxed that the Chief Justice of India (CJI) did not show any interest in quickly setting up the Constitution bench to hear the mother case of Aadhaar, involving the right to privacy, even after nearly two years of it having been referred by a three-Judge bench.

And now the child, that is, whether the Centre’s making Aadhaar mandatory for Income Tax returns is constitutional, has given the issue on a platter to the petitioners in the mother case, who have now pressed for an immediate hearing.

Who is the lead petitioner in this case? And who are the other petitioners?

The lead one was filed by Binoy Visman, a leader of the Communist Party of India (CPI), who is represented by senior counsel, Arvind Datar. The other petitioners are former Army officer, SG Vombakkere and Magsaysay Award winner, Bezwada Wilson, who are represented by senior counsel, Shyam Divan.

How did they manage to convince the two-judge bench to hear the case?

It was tough. At the outset, the Attorney-General, Mukul Rohatgi opposed the hearing on Wednesday (April 26) morning, because he said the right to privacy was involved in this case too, and therefore, it should be referred to the Constitution bench of nine Judges .

But Divan convinced the bench that the petitioners would not go into the privacy issue, but argue on the assumption that the Aadhaar Act, 2016, is valid.

==Was the bench of justices AK Sikri and Ashok Bhushan, inclined to hear the case?

The bench found merit in the argument that the matter deserved to be heard separately and expeditiously, because the last date for filing IT returns is on 1 July, and the issue before the court is far more serious than what was at stake in the mother case.

So what exactly is at stake here? Please explain!

Section 139AA of the Income Tax Act, which links Permanent Account Number (PAN) with the Aadhaar number is the issue. The petitioners describe this a draconian provision because it says that the PAN number of a person who doesn’t apply for adhaar would become invalid and he or she will be deemed to have not filed the returns thus making the person a criminal in the eyes of law.

That sounds serious. What are the constitutional violations cited by the lawyers today?

Datar explained that Articles 14, guaranteeing equality before the law and equal protection of the laws stood violated. He also claimed violation of Article 19(1)(g), guaranteeing the right to practise any profession, or to carry on any occupation, trade or business.

Did the attorney general intervene in this, presumably?

Of course, he did. He rose to refute the argument that the insertion of Section 139AA was proof of the government’s non-compliance with its own earlier assurance to the Supreme Court, that Aadhaar would never be made mandatory.

He distinguished between challenges to the pre-Aadhaar Act, and the post-Aadhaar Act, and argued that the Act made it unnecessary for the Government to comply with its assurances to the Court, which were given before the Act was enacted.

And, how did Datar answer that?

Datar began by pointing out that when the Aadhaar Act was enacted, there was nothing in it that said it would aim to check black money or duplicate the PAN, as it was claimed now before the court.

Did comments from the presiding judge, Justice Sikri, offer any clue about the bench’s attitude?

Well, if observations and queries suggest something, one might conclude that on the first day (Wednesday, 26 April) the petitioners lost the case within a few hours of its hearing.

First, Justice Sikri had said the purpose of the new Section 139AA was totally different from the Aadhaar Act.

Second, Justice Sikri seemed not at all convinced by Datar’s arguments that Article 14 stood violated. Sikri asked if Article 14 (equality before law) requires “reasonable classification” in the Act, and the nexus between such classification and its object, Section 139AA seems to fulfil it.

It categorises IT individual payees as a separate class, and makes Aadhaar mandatory for them, while not making it mandatory for the IT assessees who are juristic persons.

Where is the discrimination here, asked Sikri of Datar, as the provision seeks to achieve its objective of weeding out duplicate PAN holders. As juristic persons can’t have duplicate cards, it is not mandatory for them, and therefore, it would pass the Article 14 test of non-discrimination, he suggested.

Sikri repeatedly asked Datar: What difference does it make, if PAN cards are replaced by Aadhaar cards, especially when you keep the privacy issue out of this debate?

The other question he had asked was whether an interim order of the Supreme Court in the mother Aadhaar case in August and October 2015 could bind Parliament for ever.

He also asked Datar whether the Supreme Court could substitute the wisdom of Parliament, and hold that the old PAN card system is better than the one making Aadhaar mandatory for IT returns.

Justice Sikri also observed that in order to bring down tax evasion, the Government can think of new measures.

That didn’t seem promising for the petitioners. How did Shyam Divan’s arguments go on the first day?

Well, on the first day, and for nearly an hour and a half on the second day (today), in the guise of giving a background of the whole Aadhaar debate to the judges, Divan ended up discussing the same right to privacy, which he initially promised the bench that he would avoid.

His justification for doing so was that the bench ought to know and understand the ecology of the debate on Aadhaar, before proceeding to dissect Section 139AA.

In a sense, without using the words, right to privacy, he waded deep into the right to privacy debate until the bench realised it had been taken for a ride. Then Divan explained how the state has no dominion over his body, and that he does not live in a totalitarian state.

“My fingerprints are mine, My iris is mine, part of my physical body. Government can’t coerce me from sharing this. Aadhaar creates a system of servitude. I have constitutional rights. The state can’t insist that I can’t exercise these rights unless I part with my fingerprints or iris,” Divan said, calling it a fundamental premise.

Towards the conclusion of the hearing on the first day, Justice Sikri told Divan that the bench understood the background, and that he could proceed further.

Did Justice Ashok Bhushan say anything interesting?

He asked Divan whether photographs also involve a similar problem such as finger prints. Divan denied this, saying photographs are legitimate standard proof of identity. You can’t change your photo, but the database of finger prints can be hacked, he explained.

Any interesting side shows?

Divan referred to the 2014 report about a hacker faking the German defence minister’s fingerprints using photos of her hands. This was a terrific response to the AG’s claim that biometric is the only way to avoid duplication in PAN cards (“any other document can be faked, but not biometrics,” the AG had asserted before the bench).

Any other digressions, as the SC Judges and the counsel are generally inclined to have in such serious hearings?

Well, there were two of note. Datar referred to the rise in the number of persons buying more and more luxury cars, while the government is worried about duplicate PAN cards possessed by a few, and meeting it with a disproportionate response like making Aadhaar mandatory for all. This was in response to the discussion on the general climate of tax evasion among people.

Justice Sikri, in response, joked about how while advertising for brides, grooms always hype their incomes, but when it came to separation and maintenance, they pretended their earnings are not substantial.

So, how did Shyam Divan electrify the court atmosphere on Thursday?

Well, on Thursday, Divan resumed his arguments, again pontificating on the background, the interim orders, voluntariness vs mandatoriness and so on. He also referred to how the successive CJIs did not set up the Constitution bench to hear the privacy issue in Aadhaar, leaving it in deep freeze.

Nowhere in the world, is the biometric data of citizens collected in this manner, he argued.

This irritated the AG, Mukul Rohatgi, who got up and said that since yesterday he had been hearing the same thing: that Divan would not go into the privacy aspect, yet was talking about nothing but privacy. He indicated that Divan was yet to enter the heart of the subject matter, that is, Section 139AA, but was arguing on the merits of the mother matter.

Divan, however, said, the background was important for the judges to understand the main issue, and be alive to it, and promised to soon begin the substantive debate. Looking disappointed, Rohatgi left the court room, leaving Arghya Sengupta, (of the VCLP), who is in the Union of India team, to keep a watchful eye over Divan’s submissions.

Enter Shyam Divan II

It is at this stage, that Shyam Divan took complete control of the situation, and turned it around, by diving into the heart of the matter, and leaving few possible open questions.

He asked the judges: “If the State has all the records of an appointee to the Supreme Court from his birth to the time of appointment, in the electronic form, how would your lordships feel? When you know that somebody is watching you, the natural tendency is that you are likely to behave in a particular manner.”

The entire Aadhaar Act is voluntary, it creates rights, but not duties, Divan said. When the Act envisages free consent, can you make it mandatory, he asked.

First, he said there is complete collision or mismatch between the Act’s objectives and its implementation. Therefore, he suggested to the bench to read the word ‘shall’ in Section 139AA as ‘may’.

Next, he said, one can’t engraft into the Income Tax Act, a voluntary scheme. What the Parliament has done by enacting Section 139AA is to create a huge Concentration Camp, as in totalitarian systems, he said.

Why should I, as a citizen, be deprived of buying or selling a vehicle, or opening an account, simply because I refuse to share my biometrics, he asked.

So how did Justice Sikri respond to Divan today?

Unlike Wednesday, when Justice Sikri made crucial observations that made it appear as though he was tilting to the side of the respondents, on Thursday, Sikri asked just one question: whether an individual could ask a similar question, and refuse to part with his PAN for the sale or purchase of vehicles, or to open a bank account.

Divan then explained that PAN does not involve sacrifice of biometric data, which involves the physical body, and the finger prints. The individual owns them, and has nothing to do with privacy, he said, as if to nip in the bud the arguments from the other side, that even the question of biometrics or defending one’s bodily integrity could involve privacy issue.

When Justice Ashok Bhushan asked whether passports too can be challenged because they seek biometric data, Divan distinguished it saying passport is for a legitimate purpose, as when travels abroad, the Government has a responsibility, and uses the data for a very narrow purpose. Passport information, though it involves biometric data, may be necessary for identification issue, Divan conceded.

Divan then referred to a Colonial Act on prisons, The Prisoners Act, 1920, which permitted taking of photograph and measurements of convicts, and had an important provision, to say that if the convicts are released, the photographs/data obtained from them should be either destroyed or returned to them. This was before ‘Article 21’ became even a reality, he quipped.

What about discrimination arguments?

Divan was more persuasive than Datar on the discriminatory dimension of Section 139AA. Divan spoke about the physical difficulties of persons from going to Aadhaar centre for enrolling, and also the reluctance of persons to share biometric data, either to avail benefits, or to pay taxes.

He reminded the bench that the Aadhaar Act did not envisage a coercive machinery, and that it is purely voluntary.

If that is so, he asked, how can the State create two classes of citizens, namely, one which wishes to enrol, and the other which doesn’t, and deny to the latter, even the right to pay tax.

Even the very objective of Section 139AA is discriminatory, he argued. The Article 14 tests of reasonable classification, and its intelligible nexus with the object sought to be achieved comes later, he contended.

Section 139AA is unworkable, as it converts right into duty, and therefore, a colourable exercise of power, he added. What happens if I refuse to give consent to use my biometric data, as envisaged under the Aadhaar Act? Could I be visited with penal consequences, he asked.

I am a conscientious objector, and must have an alternative to sharing my biometric data to the State, he argued. State can’t hold the individual citizen hostage but I am compelled to give my biometric data, Divan added

Divan said informational self-determination is part of Articles 14,19 and 21, just as right to remain silent, and be forgotten are. “What I want to put out is left to me; I may choose to remain outside”, he added.

Divan’s arguments will conclude tomorrow, with the government due to respond on Tuesday.

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