'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.
http://www.huffingtonpost.in/2017/04/28/my-fingerprints-are-mine-not-the-states-advocate-shyam-diva_a_22059239/?_=1493353488352&__system_preview__=a0ZnaWJaK1BabUpKakMzazMyMkFEQT09LDE0OTMzNTM0ODksOTVSdTluZ1JWU1h6TFl6dlVRUzQ2QWFDSGs2a1JnVnJDd041eDVYMTU4WHhxRFRCc2RpV0JseHRCSTRGeEY3NnFmOXVzckZNL1MzbGt1Q1U2N2xLa1E9PTp7InNpdGVfaWQiOjEwMzMsImRhdGEiOnRydWV9&utm_hp_ref=in-homepage
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