SC Constitution Bench on Aadhaar- Final Hearing (Day XXVI)

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Advocate K. K. Venugopal resumed the arguments for the state. He submitted that s.59 of the Act provides for retrospective application. He referred to cases wherein actions were validated by a subsequent Act.

The AG then discussed the third version of the Aadhaar enrollment notification and highlighted that it is free and voluntary and provides for informed consent. Justice Chandrachud asked if the notifications that came out in 2009 and 2015, referred to in s.59 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act), covers the entire universe of Aadhaar. He further pointed out that these notifications did not have any reference to biometrics and that it was only inserted in the third notification. He stated the argument is regarding the actions that took place before the issuance of the third notification.

Senior Counsel Rakesh Dwivedi responded the first two forms were hardly used as the government authorized only 1 crore enrollments prior the issuance of the third form.

The AG, next, mentioned that in 2014 when the CBI approached the Bombay High Court to obtain biometrics from the Central Identities Data Repository CIDR in connection with a rape case, the Unique Identification Authority of India (UIDAI) opposed it as it believed that it bound to not disclose it without the individual’s consent. Interestingly, Justice Chandrachud pointed out that the Magistrate of the lower court had passed an order to provide the CBI with the biometrics of all the residents of Goa, which was appealed by the UIDAI.

Next, referring to Justice Chandrachud’s judgment in Justice K. S. Puttuswamy & Anr. V. UoI & Ors., which talks about ‘reasonable expectation of privacy’, he reiterated that biometrics collected is only for the purpose of benefitting the individual and that the invasion of privacy as a result of it is minimal. He further stated that the Puttuswamy judgment restored privacy as a fundamental right but actions that took place prior to that should be neutralized. He further submitted that going by M. P. Sharma & Ors. Satish Chandra and Kharak Singh v. State of UP & Ors., the government acted in a bona fide manner and therefore its actions cannot be reversed but should be protected.

Justice Chandrachud said in Puttuswamy it was stated that the observation on privacy in M. P. Singh was not required and that with respect to Kharak Singh there is a clear inconsistency.

The CJI said the argument of the state should be that s.59 of the Act should be given a wider understanding and a purposive interpretation.

Additional Solicitor General Tushar Mehta commenced his arguments on behalf of the UIDAI. He stated he would address the following issues:

  1. Challenge to s.139AA of the Income Tax Act (IT Act) from the right to privacy perspective
  2. Challenge made to the argument of how Aadhaar helps in curbing the issue of money laundering
  3. Challenge to the linking of mobile numbers and bank accounts with Aadhaar number
  4. Scope of judicial review in the area of technology

Addressing the first issue, he stated his submissions would comprise of:

  1. Enforcement of the right to privacy
  2. How the tests laid down to determine legitimate invasion of privacy are dealt with in the Binoy Viswam v. UoI & Ors.
  3. How these tests are satisfied by 139AA of the IT Act

The ASG stated this court had previously dealt with the challenge to s.139AA and that all aspects expect the right to privacy were addressed. He pointed out that in Puttuswamy, the right to privacy was upheld as a fundamental right, linked to Ar.21 and therefore subject to the same limitations as the article. He referred to Justice Chandrachud’s judgment that laid down the three tests used to determine to permissible limitations on the right to privacy- existence of law, legitimate state interest, and proportionality. He submitted that there is an additional test of manifest arbitrariness derived from Shayara Bano.

He submitted that all the four tests were examined in the case of Binoy Viswam but in the context of Ar.19. He, next, stated that Justice Nariman, in Puttuswamy, put forth another test of larger public interest, having a lower threshold than legitimate state interest. The CJI however responded that satisfaction of legitimate state interest would be sufficient to indicate larger public interest.

Next, he referred to s.139A of the IT Act and highlighted that it required signature and left hand thump impression since 1989 to obtain a PAN. Justcie Sikri pointed out that the fingerprint was collected only from those people who could not sign. However the ASG responded the privacy of the small group of illiterate people is not of lesser importance. He further stated that the Parliament introduced s.139AA as an extension of s.139A in light of legitimate state interest and larger public interest. The bench however pointed out that the Aadhaar regime is different as previously there was no practice of collection of biometrics or authentication.

The ASG next discussed the issue of duplication of PAN and how it is misused for the purpose of money laundering, tax evasion, setting up of shell companies. He submitted the linking of Aadhaar with PAN would help in eliminating these problems by making PAN allocation more robust.

He further stated that uniqueness of PAN is important and that it can be verified with Aadhaar using biometrics and iris scans and claimed that it would be 100 percent accurate.

The ASG further stated that there is huge gap between the number of PAN holders and the tax base. He submitted that ours is a largely tax non-compliance economy as only 1.72 lakh people in the country are showing an income above 50 lakhs.

The hearing will continue on April 11, 2018.

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