'My Fingerprints Are Mine, Not The State's': Advocate Shyam Divan's Electrifying Argument Against Aadhaar To Continue In SC Today

Court Room 8 of the Supreme Court was the scene of an electrifying exposition by advocate Shyam Divan, a civil litigation expert, on the constitutional validity of Section 139AA of the Income Tax Act, that mandates linking of the Aadhaar number with the Pan card, and mandatory quoting of it for filing of income tax returns.
Divan's debate was tweeted by lawyer Gautam Bhatia, giving those outside the courtroom a sense of what is at stake. Divan was being heard by a Bench of Justice A.K. Sikri and Justice Ashok Bhushan. Section 139AA, introduced through the Finance Act, 2017, provides for mandatory quoting of Aadhaar or enrolment ID of Aadhaar application form for filing of I-T returns and making application for allotment of PAN with effect from July 1, 2017.

As Legally India noted, the general mood of the anti-Aadhaar campaigners was not particularly upbeat after the Bench observed that "Parliament, in its wisdom, has decided that Aadhaar should be made mandatory for PAN....It is not for this court to say that PAN was not working, so this is good. That is not permissible. We cannot question the wisdom of Parliament like this."

However Divan's brilliant argument seemed to have transformed the atmosphere and brought hope to the Aadhaar petitioners. Two writ petitions currently challenge the amendment to the Income Tax Act - one filed by CPI Leader Binoy Viswam, represented by Aravind Datar, and second one by retired Major General Sudhir Vombatkere & Dalit activist Bezwada Wilson, represented by Divan. Attorney General Mukul Rohatgi is representing the Union of India and UIDAI. Divan argued that "the Aadhaar project alters the relationship between the State and the individual. It is an issue of civil liberty."
"How can you engraft a provision into the Income Tax Act making it mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary," he asked. On bodily integrity, he argued: "My fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life. As long as my body is concerned, the State cannot expropriate it without consent, and for a limited purpose."

Maintaining that the Aadhaar programme went against the concept of limited government, Divan explained the concept of bodily integrity in the context of slavery. "In our Constitution, we form the government and we have given ourself the right to govern ourselves. The government has limited authority over us. Do not let Section 139AA fetter the citizens. People's consent for Aadhaar should be free and voluntary," he said.

Here are some of his other comments. "This is fundamentally altering the relationship between State and individual. We gave birth to the State. We are sovereign. Will we be put on an electronic leash for our entire lifetimes? If from birth onwards, the State knows everything about you, will the relationship between State and individual remain the same?

Forcing a person for biometric detail is intrusion into his body. Nowhere in the world does any state have a system which tracks you 24/7.... This is the first time that in any open society this kind of tagging is being done.... The entire Aadhaar Act is voluntary. It creates a right in favour of citizens. If you choose not to apply, may not get something."

The Attorney-General reportedly objected to Divan bringing in the issue of privacy, saying "you said you wouldn't talk about privacy. Now you are." To which Divan responded: "I am giving the context." The Attorney-General then left the courtroom. After the two-hour argument, which had even those outside the courtroom transfixed, Divan requested the court to resume on Friday. The matter will continue to be debated today as Item 62 in Court 7 today.

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