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

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 Zoheb Hossain continued his submissions for the State of Maharashtra and the UIDAI. He began with referring to various international charters and covenants, stressing on the importance of harmonizing between the economic and social rights and the civil and political rights.

Justice Chandrachud noted that the Directive Principles, even though they are non justiciable, are necessary for good governance and as a guarantee of reasonableness of the law. This is why they are read into Article 21.

The counsel argued that all rights give rise to corresponding duties, and that Aadhaar was a project to secure the economic and social rights of the people. He then brought the Court’s attention to the Justice Wadhwa Committee Report on the Public Distribution System. He then brought the Court’s attention to various precedents. He referred to the case of DK Trivedi, where the Court had held that ensuring socio economic welfare was a constitutional obligation of the State. Further, it had been held that a statute could not be judged on the presumption that the executive power that it confers would be abused, or used arbitrarily.

The counsel then referred to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and resolutions of the UN General Assembly. He reiterated that rights were indivisible and interconnected, and that socio economic rights were equal to the civil and political rights.

The counsel then argued that the proportionality and reasonableness of a restriction must be examined from the point of view of the general public, and not that of a specific party that claims to be affected. He argued that even if Aadhaar is used for different purposes such obtaining a SIM card or opening a bank account, the data remains disaggregated. He stated that as a consequence, there was no possibility of surveillance, even at the level of the Requesting Entities.

The counsel then drew a comparison between Aadhaar and the Social Security Number in the United States. He noted that the SSN was used for a variety of purposes, and that people could be denied benefits for not producing their SSN. He argued that the Courts in the US had upheld the firing of an employee for refusing to provide his SSN. The counsel then argued that the Aadhaar Act had sufficient safeguards in place over the identity and authentication information. He referred to Section 33 of the Act, noting that decisions made under that Section were subject to review by an oversight committee. He concluded that the safeguards in place were greater than what are provided by the Telegraph Act, and the standards laid down by the Supreme Court in the PUCL case.

Post lunch, the counsel resumed his submissions for the Respondents with examining how various search and seizure related provisions under the IT Act and CrPC had passed constitutional muster. He then proceeded to the issue of ‘national security.’ He argued that in times of emergency, a strict adherence to the principles of natural justice is not necessary. He referred to a House of Lords decision that read in a national security exception to a statute even though the text did not provide  for it.

He then addressed the contention with respect to Section 47 of the Aadhaar Act, arguing that it provided for sufficient remedy since a complaint could be filed to the UIDAI. He argued that Aadhaar had many technical aspects, so it would be best if only the Authority has the power to complain. He noted that a similar setup in the Industrial Disputes Act had been previously upheld. In addition, he noted that the UIDAI could authorize a person to make a complaint as well.

The counsel then submitted that the Aadhaar Act had sufficient safeguards for the CIDR, while provisions under the IT Act would cover actors outside the CIDR.

The counsel then framed the purpose of Section 139AA of the Income Tax as a measure to ensure redistributive justice, to ensure substantive equality. He argued that ‘distribute’ in the Directive Principles had been interpreted liberally, and measures to prevent leakages would thus be considered redistributive.

The counsel then moved to the addressing the argument about compelled speech. He argued that not all transactions can be considered to have a speech element, for instance linking the Aadhaar to PAN. He further noted that the Court in Puttaswamy had held that rights could be curbed to prevent tax evasion and money laundering. He added that the Income Tax Act and the Aadhaar Act were standalone Acts, and that after Binoy Viswam, it was settled that they were not in conflict. He responded to the contention that only individual tax payers had been mandated for linkage, stating that a measure need not strike at all evils at once. He argued that the linkage could help cure ills with companies as well, by revealing the people behind them. The linkage can allow the deduplication of DINs. Advocate Zoheb Hossain then concluded his arguments.

The Attorney General then began his arguments, by addressing the Money Bill issue. He argued the Act was, in pith and substance, a Money Bill. ‘Targetted Delivery of Subsidies entails the expenditure of funds. He argued that every act would have ancillary provisions dealing with review, appeal etc., but the primary purpose deal with the Consolidated Fund of India.

Justice Chandrachud questioned the counsel about whether Section 57 of the Act severed that link. The AG responded that the Section merely allowed the existing infrastructure to be used for other purposes, and was just an ancillary provision. The UIDAI had been brought into existence primarily to prevent leakages and losses.

Justice Sikri noted that there was no distribution of benefits or subsidies under Section 57. The AG argued that the Section would be saved by Article 110(1)(g) of the Constitution, and stressing on an interpretation of the word ‘only’ in the Article. Justice Chandrachud suggested that that might amount to rewriting the Constitution.

The Attorney General will resume his arguments on May 3, 2018.

 

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