SC 9 Judge Bench on the Fundamental Right to Privacy – Day II [Part II]

Yesterday, a 9 judge constitution bench of the Supreme Court of India was set up to hear arguments on whether there is a fundamental right to privacy under the Indian Constitution, following from an order of a 5 judge bench on the day before. Arguments were advanced on behalf of some of the petitioners yesterday, and the petitioners counsels continued arguments before the Court today. Our updates on the proceedings before the court on Tuesday and Wednesday are available here and here. A background to these hearings, and the larger Aadhaar case can be found here.

Our update on today’s hearings have been divided into two posts, the first post available here details the arguments made by senior counsels representing petitioners S. Raju, Aruna Roy and Nikhil Dey during the first half of the day. This post details arguments made by senior counsels representing the remaining petitioners, largely during the second half of the day.

The senior counsel representing M P Rajeev Chandrashekar, an intervenor in the matter presented his arguments before the Court next. He began arguments by observing that this is the first time (9) judges of the Supreme Court are sitting to decide on the right to privacy in the age of a digital society. He noted that while data protection is a secondary issue, a subset of the right to privacy, the recognition of an inherent fundamental right to privacy has important ramifications in the digital age. He pointed out that the landmark / important judgments that we refer to in the context of privacy and surveillance – whether Kharak Singh v. State of Punjab (Kharak Singh) in India or Katz v. United States (Katz) in the US, are all located in the physical world.

Moving to arguments on the grounding of the right to privacy under the Indian constitution, he argued that if privacy is an inherent right, and it is recognised / affected by way of its manifestation, which may be in multiple rights under the constitution. It may reside in Articles 14, 19, or 21, or in the preamble itself. He argued that as an example, liberty of thought is an essential part of the right to privacy, if this right is infringed upon, the violation of the right to privacy may manifest itself as a chilling effect on free speech under Article 19(1)(a). He also submitted that cross-application of these rights is possible.

At this stage, the bench intervened, asking about the scope for informed consent in the context of the internet and data privacy. The counsel noted that we have an increasing amount of digital communication in India – and that while the quantum of data shared may not be as much as western countries like the US, what matters is the quality of data. He argued that if there is a breach of any data, even of the smallest quantity, it is a matter of importance. He referred to the US Supreme Court judgment in United States v. Jones, pointing the bench to Justice Sotomayor’s concurring opinion in the judgment. In the concurring opinion, Justice Sotomayor has discussed how governments are increasingly capable of monitoring individuals’ movements using GPS enabled phones, enabling governments to store records about individuals that could be mined for data for many years to come.

Requesting the Court to consider the way these issues have been addressed in US v. Jones, the counsel submitted that if the Court recognises the right to privacy as a fundamental right, the manner in which such data would be treated in a similar situation in India would differ vastly.

He provided the example of the Karnataka government’s rules for online taxi aggregators, which require aggregators to provide the government with information regarding every trip taken by every user using their services. He noted that this collection of information was non-intrusive, done in the guise of regulating taxi services, and not immediately harmful. However, in certain situations, this action could manifest itself as a restriction on an individual’s right to movement. At this stage the bench asked whether this would still be of issue if the information is being collected to investigate an individual suspected of terrorist activities. The counsel submitted that if the collection was done under procedures established by law, that passed the muster of the tests under Part III of the constitution, it would be acceptable, but that in this case it was being done for an entirely different purpose.

Justice Chelameswar then asked if the issue was with the collection of information or the use of the information, and Justice Chandrachud noted that both the volume of data collected as well as the permanent nature of the data and potential for use / misuse needs to be accounted for. Justice Chandrachud proposed that it could be said that the State has to specify the purpose of collection, and then ensure the data is used for those limited purposes, as authorised under the specific law. The counsel submitted that limitations of this nature are already standard in data protection regulations applicable to private entities, and noted that a higher standard should be applied where the state is collecting data impacted by a fundamental right.

Justice Chandrachud continued to raise questions – now asking whether it made a difference if the citizens whose data is collected / used are unconcerned about such collection / its purpose, and whether there is a qualitative difference between collection and use of information between state and non-state actors. The counsel argued that this lack of concern is exactly why there is a need for the right to privacy to be recognised as a fundamental right – bringing up the highly debated question of whether providing information means surrendering the right to privacy. Justice Chandrachud was quick to point out that a constitutional right cannot be surrendered, and it would merely be a surrender of information.

The counsel agreed, arguing that in the case of a non-state actor, providing information to one actor did not mean providing the information to all, and that a contractual relationship exists to enforce this understanding. He noted that similar assurances need to be provided under law where information was provided to the State. Referring once again to Justice Sotomayor’s concurring opinion in US v. Jones, he argued that the concept of privacy can no longer be shrouded by secrecy. He argued that providing information cannot mean that there is no longer a right to privacy in relation to such information, citing Justice Sotomayor’s statement that it may be time to reconsider the premise that there is no reasonable expectation of privacy in information voluntarily provided.

At this stage, Justice Bobde posed an interesting question to the counsel, asking him how these rights apply in relation to the dark web, and new forms of digital transactions such as bitcoin based transactions, which cannot be traced. The counsel submitted that the dark web is an aberration that lies outside the purview of this right, and that it is one of the reasons law needs to develop in a manner applicable to the internet and the digital age. He also argued that it is important to ensure that the State does not become a proponent of the dark web. Noting that the State would not be able to argue that law and order cannot be maintained in a part of the country due to a lack of police resources, the State should not put itself in a position where it cannot protect the rights of citizens online after collecting their data, due to a lack of technical capability / resources. Providing the example of defence at land borders, the counsel again argued that even if the State cannot clean the internet of illegal activities, it should at least be able to protect the rights of its citizens.

Once again highlighting that often the effects of violation of privacy are not felt immediately, he argued that in such a situation, the State should not be allowed to collect and use citizens’ data without oversight. He then argued that recognition of the right to privacy is the first step to ensuring that there is oversight, and that based on this right, further frameworks can be put in place to ensure protection of this right. The counsel also cited the example of the United Kingdom’s proposed biometric project, where biometric information of citizens had been collected for years. However, upon realising that it may not be possible to protect such information, the State ensured by law that all the information is destroyed.

The counsel then moved to the question of grounding of the right to privacy in the fundamental rights, and submitted that it is not possible to limit the right to specific Articles under Part III, or define the contours of the right. The bench questioned this argument saying that with decades of privacy jurisprudence it must be possible to define some contours. However, the counsel continued to argue that such limits should not be placed, stating that technology is developing at such a rate that any such contours may well become obsolete in the future.

The counsel also highlighted to the bench that the right to privacy while not explicitly recognised in the constitution, has always been recognised in statutes in India. He mentioned examples such as the Post Office Act, 1898, the Telegraph Act, 1885 and the more recent Right to Information Act, 2005 to support this contention.

The counsel concluded by stating that we should not be disputing the nature of the right to privacy in 2017, and noting that if a 9 judge bench had decided on this right 15 years ago, the State would not have been able to collect biometric data at such a scale without putting adequate legal checks (that pass the muster of Articles 14, 19 and 21) in place.

Senior counsel Meenakshi Arora was the last to argue for the petitioners. Although she was unable to complete her arguments due to a lack of time, the counsel made several important arguments before the Court on behalf of the petitioners. The counsel began her arguments by noting that the main issue before the Court is whether the words of Kharak Singh and M P Sharma are the correct expression of the constitutional position on the right to privacy. She noted that all other aspects of the right to privacy, although discussed in some detail, were merely subsets of this questions.

She noted that both cases have been read several times before the courts. She focused on the sections of Kharak Singh that struck down the provision of the UP law in question (Regulation 236 of the U. P.  Police Regulations). She argued that the court in this judgment found the right to privacy in Article 21 and struck down the provision of the UP law on this basis. She also noted that the Kharak Singh judgment was made on the basis of two US judgments – Wolf v. Colorado and Semayne’s case, as a result of which several subsequent judgments that recognise the right to privacy as a fundamental right have cited these cases.

The counsel then noted that it is difficult to hear arguments that privacy is not a fundamental right in this day. She also argued that while the digital context was one aspect of the right, the right itself could not be limited to Articles 14, 19 and 21. She urged the court to look at Articles 17 and 25 – noting that an individual might not want to share information such as their caste details. Justice Chandrachud pointed out that without divulging such information, one may not be able to receive caste based benefits they are entitled to. The counsel agreed, but argued that while the right may be restricted in accordance with procedure established by law, the use of this information that one is compelled to provide, for a purpose other than the purpose it was provided for should be considered an infringement of rights.

Moving back to the discussion on the development of the right to privacy, she noted that English common law was developed based on practices and case law. This law was then imported into Indian and US constitutional law, and jurisprudence which developed on the basis of English common law. The counsel then noted that the Semayne’s case, referred to in Kharak Singh, had already been imported into English common law before the Indian constitution was framed. She argued that the right to privacy was therefore part of English common law at time the Indian constitution came into effect and Kharak Singh was decided.

The counsel also referred to India’s ratification of international instruments such as the ICCPR, noting that it is now too late to say that we do not have a constitutional right to privacy. Although she was unable to make full arguments due to a lack of time, the counsel also requested the Court to read the judgments in Semayne’s case, Huckle v. Money, and Roe v. Wade among others to recognise the development of the right to privacy.

The counsel submitted that history has shown us the consequences of not recognising the right to privacy, and noting the change in the German constitution, and the German emphasis on the right to privacy post the second world war. She submitted that privacy is an inherent right, and that while some contours of this right can be identified, the right itself should not be limited. She concluded her submissions by stating that it is undemocratic to not recognise the inherent right to privacy in this day.

With this the petitioners’ arguments were concluded today. The hearing will continue on Tuesday, July 25, 2017, when the Union of India will argue its case.

SC 9 Judge Bench on the Fundamental Right to Privacy – Day II [Part I]

Yesterday, a 9 judge constitution bench of the Supreme Court of India was set up to hear arguments on whether there is a fundamental right to privacy under the Indian Constitution, following from an order of a 5 judge bench on the day before. Arguments were advanced on behalf of some of the petitioners yesterday, and the petitioners counsels continued arguments before the Court today. Our updates on the proceedings before the court on Tuesday and Wednesday are available here and here. A background to these hearings, and the larger Aadhaar case can be found here.

[Our update on today’s hearings have been divided into two posts, this post details the arguments made by senior counsels representing petitioners S. Raju, Aruna Roy and Nikhil Dey during the first half of the day. The second post is available here and details arguments made by senior counsels representing the remaining petitioners, largely during the second half of the day.]

Today’s proceedings began with senior counsel arguing on behalf of S. Raju concluding his submissions. Responding to the question raise in the court’s reference to the 9 judge bench, the counsel stated once again that the ratio in the judgments in Kharak Singh v. State of Punjab (Kharak Singh) and  M.P. Sharma v. Satish Chandra (M P Sharma) do not provide that there is no fundamental right to privacy under the Indian Constitution. The bench raised the question of the right to privacy in relation to private agencies / individuals, highlighting that enforcing a right to privacy against a private person would possibly act against other rights of such private person.

The senior counsel referred to academic writings that categorise privacy into 3 broad areas:

  • physical / spatial privacy: which deals with the protection against tangible / intangible invasion of private space
  • informational privacy: dealing with an individual’s control over dissemination of their personal information
  • decisional privacy: dealing with protection of an individual’s autonomy over fundamental personal decisions.

He highlighted that the nature of privacy protections against third parties that is being discussed by the Court i.e. in the context of collection and use of data in the digital world, would fall within the category of informational privacy. The counsel further submitted that we have already seen examples of remedies by way of damages discussed in the case of enforcement of a right to privacy against a non-state actor in R. Rajagopal vs State Of T.N (Rajagopal). He further stated, that the remedies would of course depend upon the case, and that there is no simple answer to this question. He emphasised that however, in the case of a violation of the right by the State, remedies must be available under Articles 226 and 32 of the Constitution.

The bench pointed out that there is a wider regulatory issue here – if there is a violation of a constitutional right by a state actor, Article 13 of the Constitution (which provides that any law that contravenes the Part III of the Constitution conferring fundamental rights will be void) would be applicable. However, in a situation where Article 13 does not apply, the question is whether the right to privacy would then be a horizontal right, requiring the state to ensure a regulatory environment in which the right is allowed to flourish.

The senior counsel highlighted that in the context of privacy, the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 are an example of the state providing such regulatory environment. He also argued that not every horizontal right requires a regulatory framework, and that such frameworks could be put in place depending upon the requirements of public interest.

The bench directed the conversation back to the question of remedies, pointing out that in the context of privacy and data protection, often the only effective remedy is an injunction, and that damages may not be an efficient remedy. The counsel agreed, stating that different forms of remedies maybe available depending upon the facet of privacy in question and the nature of violation of the right. He pointed out that in Rajagopal there was a mixture of horizontal as well as vertical application of the right to privacy. In Mr. X v. Hospital Z, a completely different approach was adopted – by approaching a consumer forum / court for the protection of the right to privacy.

The counsel for petitioners Aruna Roy and Nikhil Dey argued next. He began by stating that in addition to the arguments already made by other counsels, the statements on privacy in Kharak Singh and M P Sharma should not be construed to be of importance, since the issue of privacy as such was never raised during arguments in these cases. The statements on privacy were merely observations made by the judges that did not have bearing on the decisions in either case. Noting that Kharak Singh has been overruled by  Maneka Gandhi v. Union of India as argued by the other petitioners, he submitted that what remained was for the specific portions of M P Sharma that have been upheld in Selvi & Ors vs State Of Karnataka & Anr (Selvi) to be overruled.

The counsel then proceeded to argue that the Constitution of India is a living document, and that this implies that the rights under the constitution must develop with time. The counsel pointed out that while our Constitution, and the Indian legal system was developed on the basis of English common law, the right to privacy was originally recognised under American jurisprudence and not English common law. English common law originally provided for tortious remedies for specific acts that may be construed as an invasion of privacy, but there was no overarching tort on the invasion of privacy as such.

The counsel then observed that on the other hand, India has several obligations under international law to recognise and protect its citizens’ right to privacy. He pointed out that the right to privacy is recognised as a basic human right under the Universal Declaration of Human Rights adopted by the United Nation General Assembly which India is a member of. India has also specifically ratified the International Covenant on Civil and Political Rights (ICCPR) which also provides for a right to privacy.

He referred to the judgment in I R. Coelho v. State of Tamil Nadu which states that “constitutional provisions have to be construed having regard to the march of time and the development of law”. The counsel argued that constitutional rights must be developed in accordance with both domestic and international developments and obligations of the state. He then discussed the fact that several judgments of the Supreme Court have also stated that the fundamental rights must be interpreted expansively, construed in a liberal manner, and not diminished.

Going back to the argument on India’s international obligations, the counsel noted that ratification of the ICCPR cannot be an empty action, and that the obligations under international instruments must be applied under domestic law. Under the ICCPR, member states have an obligation to “respect”, i.e not violate the right; “protect” i.e protect against interference by private parties and “fulfill”, i.e take steps to realise and protect the right. The counsel also highlighted the parameters accepted under international law for any legislation that derogates from human rights i.e. legality, necessity and proportionality.

The counsel then referred to the reports of the United Nations Special Rapporteur on Privacy, which raise concerns regarding mass surveillance efforts by various governments across the world. He also pointed out that the United Nations General Assembly has voiced concerns on the issue of privacy as well, and adopted resolutions to promote the protection of privacy.

He also referred to the Indian Protection of Human Rights Act, 1993, and several case law, including Bachan Singh vs State Of Punjab, Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and the landmark judgments in Vishaka & Ors vs State Of Rajasthan & Ors and NALSA v. Union of India (NALSA) to note the established position under Indian law that international law and India’s international obligations are to be imported into Indian law, either by way of legislation or directly (in the absence of legislation). On the basis of these arguments, the counsel submitted that the provisions of the ICCPR should be read into the fundamental rights under the Indian constitution, and the right to privacy recognised as a constitutional right.

Moving to the issue of defining the right to privacy, the counsel referred to the Supreme Court’s judgment in Gobind vs State Of Madhya Pradesh And Anr, noting that the judgment describes the difficulties in defining the scope of this right, and provides some indicators. Justice Chandrachud observed at this stage that 40 years later, the reading of privacy under this judgment seemed narrow and dated. He mentioned that in today’s digital age, questions of identity and the ability to maintain individual anonymity are of importance. The counsel agreed, noting that this is also of specific importance in some communities such as the transgender community. The counsel and Justice Chandrachud discussed the different facets of privacy in this context, and the need to identify how much information an individual could be compelled to provide the state, and restrictions on the manner in which this information could be used. Justice Chandrachud provided an example of the state maintaining a database of all individuals convicted of a crime, and then using the meta data in this database to profile potential criminals and communities / individuals that are pre-disposed to commit criminal activities. He highlighted that maintaining the database may be acceptable, especially if it was used to provide citizens with socio-economic benefits, but the use of the database to profile individuals without any evidence would be a transgression.

The senior counsel highlighted that as long as a right to privacy exists, the tests for violation of this right could be determined on a case to case basis. The Chief Justice proposed that perhaps a good test would be whether an individual is asked to provide information that bothers / affects their dignity. The senior counsel agreed, submitting that the preamble could be read to say that dignity underlies every right granted under the constitution. He also argued to privacy is essential to dignity, and is the bulwark of the right to personal liberty, citing Suchita Srivastava & Anr vs Chandigarh Administration, Selvi, and NALSA. Noting that privacy depends upon various factors and cannot be categorised easily, the counsel concluded his arguments submitting that (i) the failure to protect privacy as a constitutional right violates dignity, and is therefore a violation of the fundamental rights, and (ii) that privacy is pervasive, like dignity, and is applicable across fundamental rights. He submitted that the right to privacy maybe located in Articles 14, 19 and 21 as previously argued, but that it could not be restricted to these fundamental rights alone.

SC 9 Judge Bench on the Fundamental Right to Privacy – Day I

Following from the five-judge bench’s decision yesterday, a nine-judge bench was constituted today to determine the existence of a fundamental right to privacy. Arguments were advanced on behalf of some of the petitioners today. A background to this hearing, and the larger Aadhaar case can be found here.

Senior counsel appearing for Mr. Mathew Thomas commenced arguments today. He began by arguing that both M.P. Sharma v. Satish Chandra (MP Sharma) and Kharak Singh v. State of Punjab (Kharak Singh) were decided when AK Gopalan v. State of Madras (Gopalan) held the field. The view adopted in AK Gopalan was that different fundamental rights operated in individual silos and were to be read separately. This decision was overruled by an eleven-judge bench in R. C. Cooper v. Union of India (RC Cooper).

It was argued that neither of the two decisions in question could be considered good law with respect to their interpretation of fundamental rights, given that the basis for these judgments i.e. AK Gopalan was overruled.

Further, the observation in MP Sharma that there is no right to privacy within Article 20(3) of the Constitution could not extinguish a general right to privacy. With respect to Kharak Singh, it was pointed out that the minority view in the case applied had the correct test and consequently, liberty was not a residuary expression and inherently contemplated privacy.

It was argued that the concepts of privacy and liberty could not be separated. If life and liberty were considered inalienable, so was privacy, as the former could not exist without the latter. Characterising the American jurisprudence on privacy as being rooted in the concept of liberty, and the continental understanding emerging from dignity, he argued that the Preamble to the Indian Constitution considered both to be inalienable values. He contended that privacy was the essence of liberty, and that human development and exercising choice required internal privacy.

It was pointed out that pursuant to the Court’s decision in Maneka Gandhi v. Union of India (Maneka Gandhi), Articles 14, 19 and 21 had to be read together. These rights, he argued, could only exist under a limited government. He pointed out that equal protection of laws under Article 14 would also protect liberty. Similarly, the exercise of choice secured under Article 19 would also require liberty.

On being posed a question from Justice Bobde regarding the facets and contours of the right to privacy, the senior counsel argued that privacy had multiple dimensions. While the Supreme Court had recognised four of these in Gobind v. State of Madhya Pradesh – spatial privacy, informational privacy, decisional autonomy and full development of personality, these were not exhaustive.

The bench also asked if the constitutional right to privacy was broader than the common law right, to which the counsel responded in the affirmative. Justice Chandrachud sought to know if the fundamental right to privacy was applicable horizontally, and if the state had an obligation to legislate to protect this right. This too, was answered in the affirmative.

Senior counsel Soli Sorabjee, who was also appearing for one of the petitioners, argued briefly that the absence of an express right to privacy under Part III of the Constitution did not imply that it did not exist.  He contended that the right to privacy could be deduced from other existing right just as the freedom of the press has been deduced from Article 19(1)(a).

Next, arguments were made by the senior counsel on behalf of S.G. Vombatkere. He argued that there was an unbroken like of decisions recognising a right to privacy for over forty years, and contended that this was an occasion to affirm, and not regress from established precedent.

Further, he clarified that the right to privacy cannot be defined with any specificity. Being multi faceted, it is not capable of an exhaustive definition and therefore must be developed on a case-by-case basis.

He also cited I R. Coelho v. State of Tamil Nadu to emphasize that the Constitution is a living document and the law must continue to evolve in accordance with modern realities.

It was argued that the right to privacy emanates from a joint reading of Articles 14, 19 and 21. He also emphasised that the right to privacy was enshrined under the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights, thereby forming a part of India’s international obligations. He also brought to the Court’s notice that the UN had recently appointed a Special Rapporteur on Privacy and published a preliminary report on Privacy in the Digital Age, signifying that privacy is a contemporary international concern. The Chief Justice remarked that the report acknowledges privacy as a basic human right. Justice Chandrachud questioned the counsel regarding data protection being distinct from privacy. He opined that data protection must be regulated by law, and that privacy could not be considered absolute. At this stage the counsel clarified that he was not contending that the right to privacy was absolute, but merely that it be developed on a case by case basis.

He argued, that what was sought was that privacy be recognised as a fundamental right. Relegating it to the status of a mere common law right would leave it vulnerable to state action and legislation. This hierarchy, in the counsel’s opinion, was an essential limitation on the state’s power.

Moving on, he argued that the fact that the Supreme Court had, over time, articulated over thirty unenumerated rights under Article 21 also went to signify that privacy is a fundamental right.

He reiterated that the majority view in Kharak Singh had been overruled, as made evident in Satwant Singh Sawhney v. D. Ramarathnam, RC Cooper as well as Maneka Gandhi. Tracing the development of the jurisprudence on fundamental rights, he explained RC Cooper had overturned the prevailing view since Gopalan (that fundamental rights operated in distinct silos). In 1976, Maneka Gandhi expressly overruled the majority view in Kharak Singh. In 2014, the Supreme Court reiterated in Mohamad Arif v. The Registrar, Supreme Court and Ors that pursuant to RC Cooper, the minority view in Kharak Singh was good law. Read together, it was contended that the statements in the majority decision of Kharak Singh on the absence of an explicit fundamental right to privacy under the Constitution could pose no bar.

With respect to MP Sharma, it was pointed out that the case operated in a completely distinct area i.e. Article 20(3) of the Constitution which provides that “no person accused of any offence shall be compelled to be a witness against himself”. The contention of the counsel was that privacy emanated from Articles 14, 19 and 21 and thus the observation in MP Sharma could not be considered an obstacle. He pointed out that the Supreme Court had expressly considered MP Sharma in the 2010 decision Selvi v. State of Karnataka and upheld the right to privacy.

He concluded by stating that the mark of a civilisation can be seen in how it treats personal privacy. Without privacy, all rights would be denuded of their vitality.

The senior counsel arguing on behalf of S. Raju began his submissions by stating that both MP Sharma and Kharak Singh only contained one stray sentence on the right to privacy. Whether privacy was a fundamental right was never a question before the Court in either of these cases. On reading relevant extracts from MP Sharma, Nariman J. observed that the 4th Amendment of the US Constitution, (which deals with unreasonable search and seizures, and was sought to be included within our Constitutional scheme), could never have been imported into Article 20(3). Pointing out that 20(3) was along the lines of the 5th Amendment under the American Constitution (which deals with self-incrimination among other things), he stated that the result would have been an anomalous situation as the 5th Amendment could never have been imported into the 4th Amendment.

The senior counsel continued his arguments citing several American cases, starting with the dissenting judgment of Justice Louis Brandeis in Olmstead vs. United States recognizing a right to be let alone, and dealing with the landmark cases of Griswold v. Connecticut and Roe v. Wade to explain how privacy had been developed from the 4th, 9th as well as the 14th Amendment(s).

He also read from Kharak Singh, arguing that with regard to the specific question on whether the judgments in Kharak Singh and MP Sharma still hold – it is important to note that the ratio in both of these cases did not specifically provide that there is no right to privacy. During the course of these readings, it was also pointed out by the bench that even the majority in Kharak Singh seemed to have implicitly recognized a right to privacy, without explicitly stating so. The senior counsel argued that it is anachronistic and paradoxical that after having recognised over thirty different rights under Article 21, the status of the right to privacy was in doubt. He also stated that while the right to privacy would fall within the ambit of Article 21, it would also need to be developed, and may be grounded in Articles 14, or 19, depending upon the issue being discussed.

Before the bench rose, it posed a few pertinent questions to the counsel. Justice Chandrachud pointed out that in several decisions, such as R. Rajagopal v. State of Tamil Nadu and Mr. X v. Hospital Z , the Court had applied the right to privacy horizontally. He sought a clarification regarding the applicability of a fundamental right to privacy against non-state actors.

Justice Nariman and the Chief Justice asked the counsel to clarify the contours of a right to privacy – the definition of the right, the restrictions on the right, and parameters of challenge for an action on privacy, if the right were to be grounded in Articles 14, 19 and 21. Another question that was posed to the counsel was whether the right to privacy would be a horizontal right, and the state would have any responsibility to take affirmative action to protect this right.

The counsels for the petitioners stated that the right would need to be developed on a case to case basis, providing not only for what is, but also for what may be. The counsel and the bench discussed the possibility of providing for various options for defining the right –simply stating that there is a right, and leaving it open to interpretation, or providing illustrations of the facets of the right to privacy.

In response to the questions on the parameters for challenges against a violation of this right, the counsel stated referred to the tests already in place to determine violations of rights under Articles 14, 19 or 21, or any other article that the right to privacy maybe grounded in depending upon the case being discussed.

The petitioners are expected to conclude their submissions within the first half tomorrow, after which the Union of India will put forth its case.

Disclosure: The author assisted the petitioners’ (S.G. Vombatkere) counsel.

Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – VI)

The arguments in the writ petition challenging the vires of Section 139AA of the Income Tax Act continued for the sixth (and final) day today. The counsel for Mr. Binoy Viswam continued his rejoinder submissions today. A summary of arguments made over the last five days can be found here.

During the course of his initial arguments, Mr. Viswam’s counsel had contended that s. 139AA ought to be struck down as it violated several interim orders of the Supreme Court directing that Aadhaar be voluntary. In its response, the Central Government had argued that there could be no injunction or estoppel against the Parliament’s power to legislate. Today, Mr. Viswam’s counsel clarified that he was not disputing the Parliament’s sovereignty. His contention was that as long as the interim orders stood, s. 139AA could not have been enacted. He further stated that the Parliament could have ‘removed the basis’ of these orders when drafting the legislation, but had chosen not to.

In response, Justice Sikri stated that the instant case was different as there was no statutory scheme at the time of the interim orders, implying that were was no ‘basis’ that could or should have been removed. He asked if there was any authority to support the proposition. The petitioners’ counsel informed the bench that there wasn’t and that the Court would be deciding this issue for the first time.

On further prodding from the bench about the basis of the interim orders, the counsel responded that they were in the nature of mandamus to ensure that the scheme remained voluntary. In the bench’s view, the writ of mandamus was issued to only the Executive, and not the Parliament. However, it was submitted that once the Supreme Court had passed an order, Parliament was not at liberty to override it, keeping its binding nature in mind. He contended that the sanctity of judicial orders must be maintained, and a judgment could only be overridden by ways known to law. As an analogy, he pointed out the Supreme Court’s ruling banning selling of alcohol along highways. He argued that states could only overcome the judgment by de-notifying highways, and not by merely allowing sale of liquor irrespective of the Court’s judgment. This, in his view amounted to removing the basis of the judgment. Coming back to Aadhaar, he contended that the only way to remove the basis would have been to make Aadhaar mandatory under the Aadhaar Act itself.

Terming the Parliament’s action as dichotomous, he argued that when voluntary under the Aadhaar Act, Parliament had no competence to make it mandatory by s. 139AA. Justice Bhushan appeared unconvinced, and stated that both statutes operated in different domains. The petitioner’s counsel conceded, but argued that this still created a clash that must be rectified. Notably, he argued that s. 139AA did not begin with a non-obstante clause (that is, a clause to the effect that an action could be mandated notwithstanding any other law or judgment). The same Parliament could not confer a right to obtain Aadhaar and simultaneously impose it as a duty. That, he argued, would lead to absurd results.

On the Central Government’s argument that proportionality should not be read into Article 14, the counsel clarified that his argument on proportionality was limited to the statute not having a rational nexus with the object sought to be achieved – that is, to eradicate black money.

He went on to explain the statistics put forth by the government with respect to increased PAN cards. He pointed out that post 1998, PAN was made an essential requirement to obtain mobile phone connections and debit/credit cards, leading to a sharp increase in the number of PANs. This, he argued, did not make the increased numbers ‘sinister’. He also pointed out that the statistics showed that the extent of duplication was minimal. Therefore, the Government had little basis to mandate Aadhaar to de-duplicate PANs when there were no figures or studies conducted to examine the extent of the problem. He reiterated that the consequence of making Aadhaar mandatory were draconian, and consequently disproportionate. This, he argued, violated individuals’ right to practice their trade or profession, enshrined under Article 19(1)(g) of the Constitution, and was not a reasonable restriction under Article 19(6).

He concluded his arguments by quoting Willian Douglas on the need to remain vigilant to protect civil liberties. He prayed for the Court to either strike down s. 139AA or at least strike down the proviso, which attached penal consequences for non-compliance. As an alternate submission, he prayed that the Court make linking Aadhaar mandatory only for those who had enrolled.

With the conclusion of the arguments, the Court reserved its judgment.

Linking PAN with Aadhaar – Updates from the Supreme Court (Day V)

The arguments in the case challenging the constitutionality of s. 139AA of the Income Tax Act (IT Act) continued for the fifth day today. Summaries of arguments advanced on the first four days can be accessed here. Today, the Central Government concluded its submissions and the petitioners commenced their rejoinder arguments.

Due to the Attorney General’s unavailability, the Central Government as well as the Unique Identification Authority of India (UIDAI) were collectively represented by two counsels for today’s hearing.

The Government advanced arguments on two grounds raised by the petitioners during their submissions –

  1. Violation of Article 14 of the Constitution
  2. Informational self-determination

Violation Article 14 of the Constitution

On Article 14, two main arguments were advanced. The first was that proportionality was not a facet of Article 14, and should not be read into the Article in the instant case. The second argument advanced was that in any case, on facts, there was no Article 14 violation. An important facet of the second argument, subsequently advanced by the second counsel was that inclusion of Aadhaar into the tax regime actually helped secure Article 14 rights, or the right to equality. India had a progressive tax regime, which in itself was an important aspect of equality under Article 14. It was argued that weeding out duplicate PANs to end corrupt practices would eliminate the discrimination against honest tax payers as against those abusing the system.

                  Proportionality

The first argument advanced was that proportionality was not a facet of Article 14 under our constitutional scheme. To decide proportionality of a legislation would amount to the Court substituting its wisdom in place of the legislature. It was argued that the issue of proportionality only arose in a context where a restriction needed to be balanced with a right of if different rights were required to be balanced. Article 14 did not contemplate any such balance and therefore, the issue of proportionality did not arise.

                  No violation of Article 14 on merits

With respect to the second argument, it was argued that the penalty imposed by the legislature could not be struck down on proportionality. This was because s. 139AA did not impose any new penalty and the consequences would be the same as if an individual did not quote their PAN for tax returns. The counsel revisited the AG’s argument that the purpose of PAN was also to provide a unique identity. Further, it was also submitted that an enactment cannot be struck down on reasonableness or arbitrariness. Rajbala v. State of Haryana was again cited for this proposition. Citing the Mardia Chemicals judgement, Justice Sikri suggested that in certain circumstances, the ground of arbitrariness may be available.

On the argument that s. 139AA lacked a rational nexus with the object of controlling black money as it only affected individuals and not companies, the Union’s response was that the enactment never purported to solve the problem completely. The Government would probably devise other methods for tax evasion and money laundering done through companies or trusts. A sealed envelope, with details of ongoing investigations was handed over to the bench to impress upon it the extent of tax fraud perpetuated by individuals. However, the bench refused to take a look at it.

The bench appeared convinced regarding the intelligible differentia between individuals and legal persons but quizzed the counsel regarding the discrimination between willing enrollees of Aadhaar and those who objected to the scheme. To this, the Union’s response was that the object of the scheme was not to discriminate, as it only sought de-duplication of PAN and not seeding of Aadhaar numbers. The counsel further argued that ‘conscientious objectors’ should actually be considered as offenders of the law, notwithstanding any good or moral justifications for not wanting to comply. If being a conscientious objector was seen as a standard for discrimination, most laws would be considered discriminatory.

Informational Self-Determination

With respect to informational self-determination, three arguments were advanced – that the right was not absolute, that the right was an inherent facet of privacy (which could not be argued before this Court) and that the right could not be imported into Indian jurisprudence as is, due to peculiarities of the Indian context.

The counsel argued that even in Germany, where the right emerged, it was not absolute. In India, all fundamental rights envisaged restrictions. Quoting Daniel Solove’s seminal paper titled Conceptualizing Privacy, he further argued that informational self-determination was intrinsically linked to privacy. Lastly, he submitted that German conceptions of privacy were markedly different and warned against directly borrowing solutions from one jurisdiction to another, without context. The counsel cited R. Rajagopal v. State of Tamil Nadu to emphasise that the right to be let alone was a part of privacy rights, which prompted Justice Sikri to frame the issue as that of choice. He asked the petitioners if they had any right to pay taxes in the manner they desired.

In conclusion, the counsel argued that biometrics were the most sophisticated technology for de-duplication in this day and age. Under Section 70 of the Information Technology Act, the central repository which stored biometrics had been designated as a Critical Information Infrastructure, ensuring additional security for it.

At 2:30 pm, shortly after the court reassembled after the lunch break, the petitioners began their rejoinder arguments. On behalf of (Retd) Maj. Gen Vombatkere and Mr. Wilson, the following arguments were made –

  1. The counsel emphasised on the petitioners’ background and their contribution to the state as well as civil society. He reiterated their grave concerns about the state’s efforts to constrain their freedom. He specifically pointed out Mr. Wilson’s work with manual scavengers and how biometrics have repeatedly failed for those engaged in manual labour. The exclusion due to biometric failure made this a real civil rights issue, rather than an elite concern as the AG had claimed.
  2. He reiterated his argument that the scheme of the Aadhaar Act was in collision with s. 139AA as the former was voluntary and the latter was not. In response, the AG had tried to reconcile this contradiction by arguing that even under the Aadhaar Act, enrolment was mandatory. The petitioners’ counsel argued that this was wrong, and proceeded to attack the premise of this argument by showing how the entire scheme of Aadhaar was voluntary. He relied on –
  • Section 3 of the Aadhaar Act, which creates an entitlement in favour of a resident, but poses no obligation to obtain an Aadhaar.
  • Further, Section 7 of the Act only applied to subsidies or benefits. He argued that it was a narrow provision and could not be extended to situations such as tax collection.
  • Section 8 of the Aadhaar Act contemplates seeking consent, again pointing towards the voluntariness of the scheme.
  • He then referred to the enrolment form appended as a Schedule to the Aadhaar (Enrolment and Update) Regulations 2016. The form clearly stated that Aadhaar enrolment is ‘free and voluntary’.
  • Additionally, citing Regulation 6 of the Aadhaar (Authentication) Regulations 2016, he pointed out how consent was an inherent aspect of the enrolment process. There could be no consent to a mandatory scheme.
  • Further, Section 57 of the Act, on which the AG had relied to show that Aadhaar could be used for purposes other than subsidies or benefits, also contemplated informed consent by making a reference to Section 8. He contended that the nature and character of Aadhaar was essentially voluntary, and therefore, tax payers could not be compelled to enrol for it.
  • The lack of any coercive action or penalty under the Act for failing to enrol.

The petitioners’ counsel also relied on representations made on the UIDAI website and the advertisements put out by UIDAI reaffirming its voluntariness. He proceeded to argue that to claim otherwise would be to defraud the public. Since instrumentalities of the state could not defraud the citizenry, their representations as to the voluntary nature of Aadhaar must be taken to be true and s. 139AA should be struck down on this ground alone.

He went on to reference a report from today’s newspaper about new-borns being required to enrol for Aadhaar even before they were assigned a name. In his view, the insistence on tracking individuals from birth showed signs of a totalitarian state, capable of destroying any individual social or political choice.

He also assailed the Central Government’s argument that biometric authentication was secure and sophisticated. He explained how it was possible to forge fingerprints using a photograph or Fevicol.

On the contention that Aadhaar leaks by government portals were distinct from the main centralised database being compromised, he contended that from the citizen’s point of view, the lapses were made by the state. The citizens’ personal information was in public domain irrespective of where the lapse occured.

On compelled speech, he clarified that the issue was not limited to parting with biometrics or iris scans, but a compulsion to give information to a private third party, 34,000 of whom had been blacklisted. The architecture, he argued, was deeply flawed. Based on the Government’s contention that personal information was required to be supplied for purposes such as Census and registration of property, he responded that these were vastly different. These were localized, retained by one authority and for a narrowly tailored purpose. Under the Census Act, there were restrictions on sharing the information, including a prohibition on using the information in a court of law. (Author’s note – the Aadhaar Act allows information stored in the centralised database to be used for court proceedings pursuant to a judge’s orders)

He also debunked the Centre’s claim that Aadhaar was an identity for the identity-less, by citing RTI replies from UIDAI pointing out that less than 0.03% of the total number of people enrolled lacked any previous form of identification.

Finally, on legislative competence, he argued that despite wide residuary powers, there were implied limitations on the state’s power to legislate with respect to an individual’s body, barring narrowly tailored circumstances. Viewed this way, s. 139AA was not a fiscal statute, where the state enjoyed wide latitude to legislate.

The counsel for Mr. Binoy Viswam commenced arguments shortly before the court rose for the day. His arguments will continue tomorrow, after which the matter is likely to be reserved for judgment. A summary of his arguments made today and tomorrow will be collectively posted after tomorrow’s hearing.

Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – IV)

The arguments in the writ petition challenging the constitutionality of Section 139AA of the Income Tax Act (IT Act) continued for the fourth day today. This provision mandates individuals to link their Permanent Account Number (PAN) with their 12 digit unique number, Aadhaar on or before 1 July 2017. A summary of the previous three days’ arguments can be found here.

The Attorney General (‘AG’) commenced arguments on behalf of the Central Government today. At the outset, he protested that the petitioners’ arguments were squarely on the issue of privacy, which is pending consideration before a larger bench, and therefore, should not have been raised. On Section 139AA specifically, he explained that the validity of a legislation could only be challenged on two grounds – legislative competence and infringement of the Constitution. He argued that besides these two, there was no ground available to the petitioners to assail the validity of s. 139AA.

Legislative Competence

On legislative competence, it was argued that Articles 246 and 248 of the Constitution, read with List I Entries 82 and 97 allowed the Parliament to enact the provision under challenge.

Violation of Rights Enshrined under the Constitution

On this ground, it was argued that paying income tax by its very nature was coercive. As a result, the challenged provision could not violate Article 19. Further, he contended that the issue of taxation did not trigger Article 21. Viewed within a broader context, the object of taxation was to ensure an orderly society and provide benefits to individuals. Although coercive, it is ultimately used for peoples’ benefit, and therefore the state is entitled to legislate to ensure orderly collection of taxes.

The Attorney General then proceeded to give a background to the introduction on PAN. He explained that Section 139A, that mandates PAN for filing income tax returns, was inserted into the IT Act in 1975. It was introduced to provide a unique identity to tax payers and ensure orderly collection of taxes.

Essentially, the crux of the Attorney General’s arguments was that Aadhaar was a more robust and effective replacement/supplement to the existing identification mechanism under the Act. He responded to the petitioners’ claim of fingerprints being an invasion of bodily integrity by arguing that there was no absolute right to one’s body. United States’ Supreme Court decisions were cited to substantiate this proposition, including the landmark decision Roe v. Wade. The AG also relied on Section 32A of the Registration Act 1908, which mandates fingerprints of buyers and sellers of immovable property. Further, the legal requirement to participate in the population census, and register births and marriages were used by him to contend that individuals could not choose to remain invisible to the state. The state had an interest in identifying everyone. The only real difference between these mandatory provisions and s. 139AA, he contended, was that due to technological advancement, fingerprints under the Aadhaar scheme were stored digitally and in a readable format. He stated that the entire argument on privacy and bodily integrity ‘was bogus’ as privacy intrusions such as body scans at airports were now a part of contemporary life.

On the petitioners’ grounds that s. 139AA was a violation of the Supreme Court’s interim orders in the main challenge to the Aadhaar, he reiterated that it is not a ground for striking down legislation. He argued that the orders had been passed when there was no statute regulating Aadhaar. The interim orders could not bar the Parliament from enacting a statute, irrespective of any undertakings given by officers of the Government (including the AG himself). He also argued that assuming that the interim orders were subsequently vacated after s. 139AA had (hypothetically) been struck down, the conclusion would be unjust. Even in the context of Vishakha v. State of Rajasthan, orders were pronounced with the understanding that they were interim in nature and would only operate till legislation was enacted.

Additionally, in the AG’s view, the context of the interim orders was limited to the usage of Aadhaar for welfare schemes or benefits. Use of the unique number for taxation purposes was never contemplated by the interim orders.

Responding to the petitioners’ argument that Aadhaar couldn’t be made mandatory under the IT Act while it was voluntary under the Aadhaar Act, it was argued that the latter was not the ‘parent’ legislation as had been claimed and did not derive authority from the former. Most importantly, it was argued that Aadhaar was not voluntary, as the petitioners had argued. As per the Central Government’s interpretation of Section 7 of the Aadhaar Act, services could not be denied only to those who had enrolled but not yet been *assigned* an Aadhaar number. Therefore, enrolment was mandatory. Further, Section 57 made usage of Aadhaar for other purposes permissible.

Responding to the petitioners’ argument on the first day that the statute was arbitrary, it was again stated that arbitrariness was not a ground on which an Act of Parliament could be struck down. For this proposition, reliance was placed on State of Madhya Pradesh v. Rakesh Kohli and Rajbala v. State of Rajasthan, amongst others.

The AG also explained to the Court the rationale and technological aspects of the Aadhaar project, and the need for mandating it for income tax returns. He made some tall claims about the robustness of the Aadhaar framework, arguing that it is the most robust system of identification and is completely fool proof. This, in his opinion was essential to weed out the duplicate PANs, which was allowing individuals and companies to launder money, generate black money and finance terror, among other things. Putting a stop to such activities would enable the government to efficiently collect tax and utilize it for public benefit. He explained the process of de-duplication, that is, the process of ensuring uniqueness by checking each set of biometrics against all the entries within the database. This, he argued would ensure that even if an individual obtained an Aadhaar with fraudulent credentials, this fake identity would be ‘locked on’ to him, as the fingerprints would be unique. He also claimed that it was impossible for an individual to obtain two Aadhaar numbers and that this had never happened. He brought to the Court’s notice that Aadhaar had enabled the Central Government to save more than Rs. 50,000 crore. However, no authority was cited to substantiate this figure.

Responding to recent reports of Aadhaar numbers being put out in public domain, the AG stated that the leaks were not from UIDAI’s central repository and that even in those instances, it was irrelevant that Aadhaar numbers were on display as the biometrics were secure.

A recurring theme in the AG’s argument was reliance on theories of social contract. He argued that individuals did not live in vacuum, but were in fact members of society. As a result, the state’s role is to regulate this society through policy and legislation. Individuals could not expect essential services such as roads, electricity and policing from the state, without an obligation to pay taxes. This obligation extended to complying with the state’s procedure for payment of taxes as well. He argued that there was no right to be forgotten against the state as ‘the state does not want to forget you’. Justice Sikri responded to this argument stating that even within a social contract, obligations had to be balanced with individuals’ liberty and dignity.

The AG summed up his arguments citing a World Bank report on the importance of having an identity and its impact on citizens. He argued that wanting to be ‘forgotten’ was a luxury of the rich, as the poor actually wanted an identity. In his view, Aadhaar helps fulfil this by providing an identity to the identity-less.

Tomorrow, the Centre is likely to continue arguments on the issue of Article 14 being violated. The petitioners are likely to respond to the arguments advanced by the Centre today.

Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – I)

The petitions challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’) came up for hearing before the Supreme Court today. Section 139AA makes it mandatory for individuals to quote their Aadhaar number when applying for a Permanent Account Number (PAN) as well as to file income tax returns. Section 139AA(2) stipulates that failure to intimate the Aadhaar number would automatically invalidate one’s existing PAN. Further, not linking the two also creates a legal fiction by which the provisions of the Act would apply ‘as if the person had not applied for the allotment of the PAN’.

Passed in March 2017, this IT Act amendment comes in the backdrop of several pending petitions challenging the constitutional validity of the Aadhaar project. Since 2013, the Supreme Court has passed multiple interim orders directing that Aadhaar remain purely voluntary till the pendency of these petitions. In August 2015, the Supreme Court had referred these matters to a larger bench, citing ambiguity in the Court’s jurisprudence on the fundamental right to privacy. Almost two years later, this bench remains to be constituted.

This background is pertinent given that the petitioners were forced to limit their submissions to the issue of linking Aadhaar numbers with PAN. The pending reference effectively ended up acting as a bar to assail the IT Act provision on the basis of privacy issues associated with Aadhaar.

The challenge constitutes of two separate writ petitions, filed by different sets of petitioners. The first petition has been filed by Mr. Binoy Viswam and the second by (Retd). Maj. Gen. Vombatkere and Mr. Bezwada Wilson, who are also petitioners in the main challenge to the Aadhaar project.

Arguments Advanced on behalf of Mr. Viswam:

The counsel for Mr. Viswam primarily advanced two arguments – that Section 139AA is unconstitutional as it violates and overrules several orders of the Supreme Court, and that it infringes Article 14 of the Constitution.

  • Section 139AA violates orders of the Supreme Court that were based on the Central Government’s undertakings – It was argued that by way of successive interim orders, such as on 23 September 2013, 11 August 2015, 15 October 2015 and 14 September 2016, the Court had directed that Aadhaar remain purely voluntary. The 15 October 2015 order specifically states that the Aadhaar scheme must remain voluntary ‘till the matter is finally decided by this Court one way or another’. Reference was also made to the Supreme Court’s recent order in Lokniti Foundation v. Union of India (6 February 2017), where it recorded the government’s submission that Aadhaar was voluntary for obtaining a telephone connection.

Based on these facts, it was argued that no one could be deprived of a service or benefit for want of an Aadhaar number. The bench observed that such undertakings could not preclude the Parliament from passing a law (such as that in issue). To this, the counsel responded stating that the state could not indirectly make Aadhaar mandatory under the IT Act while it remained voluntary under the parent Act, that is – the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘Aadhaar Act’). Section 7 of the Act, which stipulates that no benefit or service can be denied on the ground of not having an Aadhaar number, was read to support this contention.

Additionally, it was argued that these interim orders granted individuals a right – the right to not enroll for Aadhaar. This could not be taken away till the decided the matter conclusively. The counsel buttressed this contention citing precedent – Madan Mohan Pathak v. Union of India (1978) 2 SCC 50 and Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637, amongst others.

  • Section 139AA is violative of Article 14 because it unreasonably targets individuals out of all categories of assessees and for bring arbitrary – Besides individuals, entities such as companies, partnership firms, co-operative societies and trusts are also required to file returns on their income. As a result, it was argued that Article 139AA discriminated between assessees as it only adversely impacted individuals.

The argument advanced was that the twin test of permissible classification – that the classification is not based on an intelligible differentia, and that the differentia has no rational relation to the object sought to be achieved by the provision, were not satisfied in the present case. Given that the object of linking the Aadhaar and PAN is to address black money and weed out fakes, the provision fails to address nefarious activities carried through companies or trusts. This argument was later also advanced on the ground of proportionality.

This was met with some resistance by the bench, which observed that there was a natural distinction between natural and juristic persons and a distinction on that ground was not, discriminatory per se. It went on to observe that the law could be treated as a mere replacement of one system by another. The larger challenge to Aadhaar aside, it was difficult to assail the validity of a new or reformed system on this ground alone.

Counsel for Mr. Viswam then attempted to show that the provision is unconstitutional for being arbitrary. He submitted that such an unreasonable classification virtually resulted in ‘civil death’ for an individual. As per Section 114B of the IT Act, a PAN is necessary for eighteen essential transactions including opening a bank account and purchasing shares. If invalidated under Section 139AA(2), it would unreasonably restrict the right of individuals to carry on their business, as opposed to entities such as companies. Further, the individual would also be subject to additional penalties due to the legal fiction by which an individual is assumed never to have applied for a PAN. It was argued that this retrospective effect was highly prejudicial to individual assessees.

This was immediately objected to by the Attorney General, who argued that the legal fiction was not intended to be retrospective and would only apply from 1 July 2017, which is the deadline for linking Aadhaar with PAN.

To conclude, it was submitted that as per the data published by the Unique Identification Authority of India, enrolment rates for several states such were above 100%. This data was used to show that the problem of fakes or bogus cards existed even under the Aadhaar regime.

Post lunch, the counsel for (Retd.) Maj. Gen. Vombatkere and Mr. Wilson began arguments. He outlined his prayers before the Court – that Section 139AA be struck down, or alternatively, be read down to make Aadhaar a voluntary requirement.

As a preliminary point, he argued that neither of the petitioners had enrolled for Aadhaar. Being parties to the petitions challenging the Aadhaar project, they were conscientious objectors to the entire scheme. He proceeded to outline the broader issues in the challenge, with a view to provide the judges with some context. His submission rested on the idea of autonomy and bodily integrity associated with biometrics such as fingerprints and iris scans. Arguing that the Indian Constitution guaranteed a free, democratic society, he stated that the state had no dominion over core elements on one’s body and identity. As a result, the state could not coerce citizens to part with this information as a condition or as a bargain for enjoying rights guaranteed to them.

The arguments on behalf of (Retd.) Maj. Gen. Vombatkere and Mr. Wilson will continue on April 27 and will build on the specific issue of Article 139AA. The Attorney General is also likely to make his submissions on behalf of the Union Government.