Thursday, May 4, 2017

Shyam Divan, advocate for petitioners: "Aadhaar is purely Voluntary" / "Aadhaar is like building a bridge and then looking for a river. It is hunting for problems to make itself relevant."

At the latest hearing on Aadhaar in the Supreme Court today, Arghya Sengupta of Vidhi Centre for Legal Policy who was arguing on behalf of the Government started with two broad arguments for the Union of India and UIDAI: 

(1) That proportionality could not be read into Article 14, and 
(2) The idea of informational self-determination was equivalent to privacy and privacy was referred to a larger bench. 

He countered the proportionality arguments by citing judgments from the UK.He said that a statute could not be struck down for disproportionate penalty because penalty could be decided by the wisdom of Parliament. Sengupta said that the object of this amendment is to fight corruption but no legislative order can completely solve the problem 100%. Sengupta said the object of the amendment is not to discriminate between those who have Aadhaar and those who don't but rather to weed out fake PAN cards. He then argued that informational self-determination is not absolute even in Germany, where there is informational self determination (mentioned by Dpetitioners ;lawyers Divan in earlier hearings) and it could not be read into Indian law and that it could only be understood to be a party of privacy.

Justice Sikri then observed that the right to be left alone is a question of a person’s own life. The question lay in whether in a tax regime you could exercise your right and say that you would pay taxes in the manner you chose to. Sengupta responded by quoting Oliver Wendell Holmes, "Taxes are the price we pay for civilised society", he said. Sengupta admitted that there were technical difficulties and errors in the UID system, but maintained that biometrics is the best technology in existence at present.

Zoheb Hussain appearing for the UIDAI said there is a distinction between protected and unprotected speech and that distinction will always be maintained. Every action is not speech. Enrolment for Aadhaar does not amount to exercising the right to free speech. He argued that the object of the amendment was to fight black money, increase tax collection and therefore reduce inequality. The object could not be said to be discriminatory because it was in furtherance of equality. 

Petitioners' lawyers response: 
Senior Advocate Shyam Divan appearing for the petitioners Dalit activist Bezwada Wilson and retired Major General SG Vombatkare responded to these arguments. He began by establishing again the credentials of the petitioners. He said "It is being alleged that I am a hermit who wants to live in the Himalayas." In fact the petitioners are a decorated Major General in the Army and the other, a Magsaysay Award winner for his work with the Safai Karamchari Andolan. "The petitioners live robust lives and are contributors to society."  He said that the concern raised about Aadhaar was not an elite concern, rather that it was a concern of civil liberties, affecting all citizens. "The citizens of what we regard to be a free country are being mandated to be fingerprinted." 

Mr. Divan went on to explain that there is contradiction when "Aadhaar is voluntary but PAN is mandatory." The Income Tax Act makes PAN mandatory and the lack of PAN leads to penal consequences. Aadhaar is completely voluntary. The Aadhaar enrolment form says that Aadhaar is free and voluntary, Section 3 of the Aadhaar Act says that a resident is entitled to get an Aadhaar number, several advertisements in which the UIDAI itself said that Aadhaar was voluntary, Divan pointed out. 

Subsequent provisions specify that residents must be informed how their data will be used, he said. Every requesting agency under the Act must ask for the consent of the individual Aadhaar number holder, as per the Aadhar Act, then consent and information required under the Act can only exist if Aadhaar is voluntary. Divan said "It is untenable to claim that Aadhaar can be made mandatory when the statute says that it is voluntary."

Mr. Divan cited a definition of fraud laid down in a judgment and asked whether UIDAI was committing a fraud on the public at large. He said that an institution of the government could not commit fraud on the public and so the only conclusion could be that Aadhaar is voluntary. He explained that the object of 139AA was discriminatory because it discriminated between those who chose to give up their biometrics and those who didn't, in order to pay their taxes. Some people chose Aadhaar but PAN is not replaced by Aadhaar. 

Mr. Divan cited a news report from the same day where a newborn child was given a UID number before he was given a name because, without UID, he was not able to get a birth certificate. Mr. Divan asked "Can you have a system where a child is tagged and numbered before he has a name? Can you have a system of surveillance? It will destroy all political choice." 

The UID project violates Article 19(1)(a) because it requires individuals to give my most sensitive information – not to the Government of India – but to unknown third party enrolling agencies, Divan added. On the Union’s argument that fingerprints are collected under the Registration Act, he explained that to buy property, fingerprints were given on paper in a process totally distinct from giving fingerprints to a central database where they could be repeatedly authenticated.  He said that there might be some instances where invasion of the body might occur (e.g., hospital procedures or wearing helmets, seat belts), but all these actions are protective in nature and to protect the body. 

Finally, he showed the Court a reply to an RTI where the UIDAI admitted that only 0.03% of people who had enrolled in Aadhaar had no other form of identity before. He also pointed out that in another RTI query the UIDAI admitted that 1 lakh Aadhaar numbers had been cancelled due to duplication.  Mr. Datar began his rebuttal by stating that the basic argument being made by the Union and UIDAI was "What is your problem?" Mr. Datar said "But one must remember civil rights movement started with a woman made to sit at the back of the bus. No one told her not to make it a big deal." He argued strongly that condoning the violation of the interim orders of the Supreme Court in the earlier batch of petitions would have grave consequences for the rule of law. 

Mr. Datar will complete his submissions tomorrow, May 4.

More on Aadhaar

'Aadhaar is like building a bridge and then looking for a river. 
It is hunting for problems to make itself relevant.'
Senior Advocate Arvind Datar’s fiery rebuttal began today in the Aadhaar-PAN(Permanent Account Number) linkage case. Datar, who is representing CPI's senior leader Binoy Viswam. argued that the earlier orders of the Supreme Court that Aadhaar  cannont be made mandatory continue to hold weight. The Union and all states were before the Court when these orders were passed. The Attorney General (AG) had even given an undertaking to the Court stating that Aadhaar would be voluntary.

Justice Sikri said the Act would shave to be tested for its basis. Datar agreed that this was a new kind of case placed before the Court for the first time. Justice Bhushan said, "The scheme has now become an Act". Datar explained that when the Supreme Court had given its orders Parliament could only overrule judicial orders in a manner known to law - that is, by taking away their basis. A Supreme Court directive or judgment is sacrosanct, unless set aside by a process known to law. Datar said that there was a clear collision between the Aadhaar Act and the Income Tax Act, and "if both Acts are allowed to stand the results would be absurd."

Datar explained that the government had failed to show how the stated objective of curtailing black money is possible by linking Aadhaar and PAN. On the Attorney General’s (AG) argument that Aadhaar was needed to fight black money and terrorism, Datar said "Anybody with any common sense would ask, how will Aadhaar check black money? Aadhaar was sold as a panacea for all ills - black money, terrorism, leakage etc. like herbal medicine", but, he noted, "Aadhaar is like having built a bridge and looking for a river. It is hunting for problems to make itself relevant."

On the AGs argument on Foreign Account Tax Compliant Act (FATCA), Datar said that nothing in FATCA created a requirement for Aadhaar.  He was interrupted by government's counsel Arghya Sengupta who stated "the problem is that if we give the United States duplicate PANs, it becomes an embarrassment." Mr. Datar responded that this had nothing to do with the stated objective of of 139AA. 

Senior advocate Arvind Datar cited the figure of only 0.04% of PAN cards being duplicates. He asked whether the government had done any study before introducing 139AA. He said "for 0.4% duplicates, 99.6% must seed their Aadhaar with PAN. Is that reasonable restriction under Article 19(6)?" He argued that without a PAN card, people's economic lives would come to a standstill, and that interests (the ability to do business versus duplicate PAN cards ) had to be balanced. 

He said that the government was slowly attempting to make Aadhaar mandatory when claimed it was voluntary. This was a case of extreme and far reaching consequences. Mr. Datar said "The AG says, 99% have got it. What's your problem? That argument is the death knell of individual rights and democracy." Quoting William O. Douglas, Senior Advocate Datar said "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.” "Darkness does not come all at once. It is in the twilight that we must be most vigilant, or we are lost." He asked "are fundamental rights the playthings of the majority?" 

Finally, Datar submitted that the Court must strike down 139AA or read it down and in case the Court decides to refer the case it should stay 139AA. Mr. Salman Khurshid also appeared for the petitioners and made brief submissions about human dignity and state control over the body. The judgment has been reserved and no date has been given yet for the orders of the Court. 

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Statements on previous hearings at