Two writ petitions challenging the latest amendment to the Income Tax Act, which makes the submission of a users Aadhaar number mandatory when filing income taxes, were heard on Wednesday and Thursday at the Supreme Court by a bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan.

The scheme, which links the Permanent Account Number to Aadhaar, is meant to be implemented from July 1st 2017 onwards, has come in for criticism, as a violation of the Supreme Court’s orders, which deemed that Aadhaar should not be made mandatory, except for a few welfare services. The amendment in question is the introduction of Section 139AA of the Income Tax Act.

The first petition was filed by CPI Leader Binoy Viswam, who is represented by Senior Advocate Aravind Datar, and the second one was filed by Sudhir Vombatkere and Bezwada Wilson, who are represented by Senior Advocate Shyam Divan. Attorney General Mukul Rohatgi, Harish Salve, and others are representing for Union of India and UIDAI.

Notes from the discussions in the Supreme Court below, based on press releases (thisthis and this) from the Rethink Aadhaar campaign, and interspersed with a slightly edited/paraphrased version of lawyer Gautam Bhatia’s* tweets.

Wednesday, 26th April 2017

The bench began by stating that the Constitutional challenge to Aadhaar was yet to be heard. The counsels for the petitioners immediately said that arguments would be made without covering the Right to Privacy. The bench said that they had been thinking of tagging the matter.

From Gautam Bhatia: In other words: for one year and eight months, the SC refuses to hear the privacy challenge to Aadhaar. Then the SC uses that to say to counsel that when there’s no stay on those proceedings, either we’ll tag your case with the main challenge, or you argue without (arguing the right to) privacy. And because there’s no knowing when the SC will hear the main challenge, and because Aadhaar/PAN kicks in on July 1, petitioners had no choice but to accept, and argue this case with one arm tied behind their backs.

(source: herehere, here, here)

For over a year the Supreme Court has refused to constitute a bench to hear the Aadhaar matter and the government has continued on in flagrant violation of the orders of the Court. The Aadhaar project has been riddled with controversies in the last few months: Massive data leaks and fraud have been recorded and brought into the public domain.

Senior Advocate Arvind Datar began by discussing how the mandatory linking of PAN to Aadhaar violated Article 14 and article 19(1)(g) (of the Constitution of India).

From Gautam Bhatia: Datar argued that 139AA is contrary to the orders of the Court, violates Article 14 and 19(1)(g), is a colourable exercise of power. (Source)

He further argued that even the Aadhaar Act did not allow for Aadhaar being made mandatory. In this context how could the govt amend another law to make it mandatory?

He pointed out that the proviso to s.139AA (if the Income Tax Act) said that all PAN cards would be deemed to be invalid as if the person had never applied for PAN.

From Gautam Bhatia: Datar said that repeated assurances were made that Aadhaar was voluntary. The Attorney General responded by saying that those assurances were made when there was no law.

Datar responded to that by saying that when solemn undertakings are made to Court that Aadhaar will be voluntary, you can’t make it mandatory through Income Tax. He then read reads out the SC orders (pre-Aadhaar Act) specifying that Aadhaar must be voluntary.

(sources: here, here and here)

The government clarified that it would not be retrospectively applicable. Mr. Datar stated that the amendment violates article 14 and is arbitrary in nature. He cited judgments in support of the proposition that laws can be struck down on the grounds of arbitrariness.

From Gautam Bhatia: Datar said that you can legislatively overrule court directions by directly taking away its basis, but not indirectly through the IT Act. He cited Madan Mohan Pathak to say that you cannot indirectly get around a mandamus by legislating, and must do it directly. He added that, in case of ambiguity, the interpretation must be in favour of individual rights. Datar cites 1971 1 SCC 509 to substantiate the point that SC directions cannot be indirectly bypassed.

Datar said that 139AA (of the Income Tax Act) attacks only individual assessees, and no other tax paying entity. If you want to curb black money, why attack only individuals? If you want to curb duplication, why only individuals?

Justice Sikri then asked whether there can’t be Aadhaar for companies or HUFs (Hindu Undivided Families). So how can there be any discrimination? Datar responded by saying that there is an intelligible differentia between natural persons and non-natural persons. But there is no nexus to the goal of 139AA.

Justice Sikri asked that if it’s physically impossible for companies to get an Aadhaar, how can the difference violate Article 14? Datar responded by saying that the problem is that 139AA applies to all assesses. Out of this class, the government has picked out individuals, and made them suffer. There are twelve categories of assessees under the IT Act, only individuals are compelled to get an Aadhaar.

Datar pointed out that there are eighteen transactions that you can’t make without a PAN: opening accounts, buying vehicles, credit cards, DEMAT (among others). While there may be a differentiation between natural and non natural persons, but what is the rational nexus (to the goal of 139A)? The only official reason given is the elimination of black money. What is the nexus between Aadhaar card and curbing of black money? They (the government) have shown none. Individuals as a class suffer serious prejudice and discrimination. This is a classic case of Article 14.

Datar then cited Mardia Chemicals and Malpe Vishwanath (cases) for the proposition that arbitrariness can be a ground for striking down law.

Datar says that 139AA operates retrospectively. He finally said that 139AA violates Article 19(1)(g) and is not saved by Article 19(6).

The Attorney General then jumped up and shouted that the only system in the world that prevents duplication is biometric.

(sources: here, here, here, here, here, here, here, here), here, here, here, here, here, here, here, here, here, here here and here and here.

Senior Advocate Shyam Divan began by explaining the context of the petitions. He said that even though privacy was not in question the bench should be aware of what was at stake. He said “what is it that we are fighting for? My fingerprints and iris are mine and under my control. Not even the great Republic of India can force me to part from my body. There is no bargain the the Constitution of India that allows the government to say give me your fingerprints.”

Mr. Divan explained that even if privacy was not in question – surveillance, profiling and seeding (putting Aadhaar in multiple databases) was. He explained the enrolment process which is carried out by private agents who collect and store biometric data. 34,000 enrolment agencies have been blacklisted.

He also showed the court the Aadhaar enrolment form prior to 2016 under which lakhs had enrolled where people had to give their consent to the UIDAI which could arbitrarily share their data with third parties.

Thurdsay, 27th April, 2017

Shyam Divan argued the matter highlighting major problems with the Aadhaar project and spoke of seminal issues vital to the nature of relationship between the citizen and the state. He covered bodily integrity, discrimination, personal autonomy and choice in the context of Aadhaar being made mandatory for PAN cards. He explained that the petitioners in this case are conscientious objectors to the Aadhaar project. They are law abiding citizens who wish to pay tax, but do not wish to get Aadhaar. There are many like them.

Further, the amendment to the Income Tax Act discriminates between those who have Aadhaar and those who do not want to get Aadhaar. Both classes of people want to pay taxes but those who do not wish to get Aadhaar will face penal consequences. The government’s move violates Article 14 of the Constitution, which guarantees the right to equality. Aadhaar acts as an “electronic leash” and creates the potential for constant and continuous surveillance, he argued.

The Aadhaar project itself has been riddled with scandals.

Divan read out a list of government websites that are leaking Aadhaar numbers and financial details of individuals. We have seen massive data leaks across 12 government websites including the Jharkhand Directorate of Social Security which displayed the Aadhaar numbers and bank account numbers of over a million pensioners. 34,000 private enrolment agencies were blacklisted by the UIDAI itself.

From Gautam Bhatia: Mr Divan points out that 34000 operators making fake Aadhaar Cards have been blacklisted. (Highlighting that fingerprints can be duplicated, he pointed out that) A German Minister’s fingerprints were faked using a hi-definition photograph of her hand, and a hacker extracted the iris data of Angela Merkel.

An RTI reply from UIDAI states that 85 lakh Aadhaar numbers deactivated for duplication. There are reports of fake Aadhaar Cards being found on people. Divan said that huge tranches of data are being leaked into the public domain, quoting a MediaNama report which lists some of these leakages, taking the court through each instance of public leak of Aadhaar numbers, including Srinivas Kodali’s initial report on a leak. He pointed out that once all these websites are connected and linked, there is a serious apprehension of data being compromised.

Source: here, here, here, here, here, here, here, here.

In such a situation people, Divan said, people are compelled to enrol through various manipulative coercive exercises of this government when it links vital services to this biometrics-linked number when the Aadhaar Act makes Aadhar purely voluntary. The Aadhaar Enrolment Form itself states that Aadhaar is consensual and voluntary.

Divan pointed out that citizens in Rajasthan had been denied food rations because of Aadhaar biometric failures. He questioned if we lived in a State where citizens are denied will be denied ration because of Aadhaar failures. Shockingly, children and even new-born babies are being forced to enroll in Aadhaar. (The government is forcing parents, and it has made essential to have Aadhaar even in children’s schemes such as school education and mid-day meal lunches before the age of free consent). Consent must be free and informed.

Mr. Divan explained what was at stake in this matter. He said that since the matter was referred three Chief Justices had not been able to constitute a bench to hear the question of whether privacy is a fundamental right. In the interim there could not be a fait accompli situation.

From Gautam Bhatia: Divan said that on 11th August 2015, the petitioners had made out a sufficient case to convince the three judge bench that there are serious issues.

Source: here

ISSUES OF CIVIL LIBERTIES

The Aadhaar project alters the relationship between the State and the individual. It is an issue of civil liberty, Mr Divan argued.

From Gautam Bhatia: Divan said that this (Aadhaar) is fundamentally altering the relationship between State and individual. We gave birth to the State. We are sovereign. Will we be put on an electronic leash for our entire lifetimes? If from birth onwards, the State knows everything about you, will the relationship between State and individual remain the same? It was in this context that the 11 August order said, Aadhaar shall only be voluntary. This is the first time that in any open society this kind of tagging is being done.

Source: here, here, here, here, here

The Attorney General interrupted these arguments and asserted that the right to privacy could not be argued. Justice Sikri said that Mr. Divan was only explaining the context of the matter.

The Aadhaar Act itself does not allow Aadhaar to be made mandatory. Section 3 creates a right that entitles citizens to get Aadhaar but there is no duty to obtain an Aadhaar number. “How can you engraft a provision into the Income Tax Act making it mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary,” said Mr Divan.

From Gautam Bhatia: The entire Aadhaar Act is voluntary. It creates a right in favour of citizens. If you choose not to apply, you may not get something. But basically, the Act is voluntary. It contemplates free consent. The question we will raise is: can you now make it mandatory? The scheme under the Aadhaar is in direct collision with the Income Tax Act. Consequently, I first invite you to read “shall” in the IT Act as “may”, to save it from unconstitutionality.

Justice Bhushan responded by saying that the two Acts operate in different domains. To this, Mr Divan answered: everything from enrollment onwards suggests that you are volunteering for Aadhaar. You cannot engraft into the IT Act a voluntary scheme. We are trying to avoid a totalitarian system, where a man becomes a number. The proviso, at the very least, must go. Why should I be deprived of selling or buying a motor vehicle (for which you need a PAN) because I don’t want an Aadhaar?

Source: here, here, here, here, here, here, here, here, here, here

Mr. Divan returned to the question of bodily integrity. He said “my fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life.”

He cited judgments and jurisprudence literature that “others cannot act in a way that subjects my body to their interests”. He explained bodily integrity in the context of the intrinsic wrongfulness of slavery which takes away the body and liberty. The use of a person’s body can only be for their own objects.

From Gautam Bhatia:

Justice Sikri: won’t the same objections apply to PAN?
Mr Divan: No. The level of intrusion is much greater in Aadhaar. You can’t take my body part as a condition of me exercising my rights. That is a Faustian bargain. Not permissible under Constitution.

Source: here, here, here.

When asked whether this argument would apply to passports, Mr. Divan responded that biometric collection could only apply to a narrow limited situation, such as passports, or identification of prisoners.

From Gautam Bhatia:

Mr Divan pointed out that there is a legitimate interest there (passports) – there may be limited areas – if you want to travel abroad and something happens, you need to be identified. Similarly with prisoners. There might be a limited interest there. But this (Aadhaar) is overarching. Tracks you 24/7. For everything you do. So, the short answer is: PAN is not intrusive of my body. My fingerprints are mine. Not the State’s. As long as my body is concerned, the State cannot expropriate it without consent, and for a limited purpose.

Mr Divan then gave examples of Aadhaar failures in Rajasthan (possibly based on these reports by Anumeha Yadav: here, here, here and here). He asked: “Are we a State that says that unless you give me your fingerprints, I will not give you a ration? Is the individual so subordinate to the State?”

Source: here, here, here, here, here, here/

Mr Divan argued that biometrics could not be collected wholesale and stored in a central depository. He said that the Aadhaar programme went against the concept of limited government.

From Gautam Bhatia: Mr Divan took the Court through the IT Act’s provisions on personal data. Personal data is “of the person”. It belongs to the person. “property includes all a person’s legal rights.”

Mr Divan quotes Hobbes and Locke for man’s property in his own person. “what does Article 21 protect, if not the body?” He then quoted Rawls (Every individual is a source of self-authenticating claims) and the Identification of Prisoners Act, 1920, saying that the Identification of Prisoners Act shows how intrusion of the body must be specific and limited. If a person refuses, at worst, the court can draw an adverse inference. Can’t compel. If this is the scheme, how can you for the purposes of tax efficiency intrude on the body in this way?

Source: here, here, here, here, here, here, here, here, here, here.

He said that regular routine activities including buying a car, selling property, opening a savings account, would become contingent on the provision of biometric linked information. He said, “how can someone ask for fingerprints for carrying out routine activities.”

The bench asked whether this argument would apply to the mandatory provision of PAN as well. Mr. Divan explained that PAN cards are not intrusive of our bodies whereas Aadhaar is.

Mr. Divan said “this is the kind of case where we have to read the Preamble to the Constitution”. In reading the Preamble he emphasised that the people of India give the Constitution to ourselves. “The Constitution of India is not a Charter of Servitude”

From Gautam Bhatia:
Shyam Divan pointed out that the Indian Constitution does not establish a totalitarian State. The Constitution is not a charter of servitude. We are free citizens. You cannot invade my body without my consent. You cannot in law completely ignore the distinction between individual and State.

He quoted 1967 2 SCR 447 (?): under our Constitution, government must be limited. A government directive cannot convert limited government to totalitarian government. He read from the case, pointing out: “The people govern themselves.” Limited government is not compatible with tethering citizens to an electronic leash. He cited NALSA (2014): The right to life includes the right to personal autonomy. What is personal autonomy? At the very least it includes my body, my fingerprints, my autonomy.

Mr Divan quoted Sunil Batra 1978 4 SCC 474 (?), para 55: right to life is more than mere animal existence; and the Aruna Shanbaug’s Case: the right of every individual to have control of their own body. The right to life under 21 read with 14 and 19 guarantees to all the enjoyment of fundamental rights, he said. The test for the constitutionality of a provision is whether its effect is to violate fundamental rights. The effect in this case is severe penal consequences that impinge on personal autonomy. For what? Collecting taxes? Can’t be done. S 139AA must be read down to make it voluntary.This law has a discriminatory object. You are converting what is a right under the Aadhaar Act to a duty. That cannot be done.

The object of the statute cannot be discriminatory, he said. This is a dynamic Constitution. We have brave judges who protect rights. Mr Divan read out the 2014 DSPE case for Article 14, and cited Paras 58 and 59: classification must have a legitimate purpose. “Can you expropriate for all time, my fingerprints and iris scans, and put them in a centralised depository?” he asked. Mr Divan invoked the principle of informational self-determination as a facet of Article 21: Mr Divan: in a digital world, informational self-determination is a part of Articles 21, 19, 14.

Source: here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here.

Friday, 28th April 2017

From Gautam Bhatia:

Mr Divan began by highlighting that Section 139AA of the IT Act discriminates between two homogeneous classes of taxpayers: those to consent to Aadhaar, and those who do not. ‘”Compelled free consent” is a contradiction in terms’, he said.

Source: here, here and here.

Self Determination

On April 28, arguments began with the idea of ‘informational self determination”. Informational self-determination was developed by the German Federal Constitutional Court which articulated it as: “the authority of the individual to decide himself, on the basis of the idea of self-determination, when and within what limits information about his private life should be communicated to others.”

From Gautam Bhatia:
Mr Divan: An individual must be allowed to limit what he or she puts out to the world. It is her autonomy.

He then took the court through the conceptual basis of informational self determination, citing Nicklas Luhmann.

Mr Divan: informational self-determination is essential for the free development of the individual. Likewise, the free development of the individual is essential for a free and democratic society. Informational self-determination is therefore different from the right to privacy. Informational self determination is required for a free and democratic communicative order. The FCC has therefore recognised info self-determination flows from the right to personality, which in turn flows from dignity and personal liberty.

Source: here, there, here, here, here, here, here, here, here, here.

The case for privacy protection in the Aadhaar Act is often made by citing the fact that core biometric information (s. 2 (j) fingerprints and biometrics or such other biological attribute of an individual as may be specified by regulation) cannot be shared by anyone. However, once you submit your fingerprints and iris scan to the UIDAI, under the Aadhaar Act, you yourself can never access your own information (proviso to s.28 and s.29). Thus, there is no question of self-determination here because when one gives up your biometrics to the UIDAI, one truly gives them up.

Senior advocate Shyam Divan distinguished informational self determination from the Right to Privacy and explained that informational self-determination had its basis in the liberty and freedom of an individual. He said “the individual decides about their data. Not the government and not the data banks”.

From Gautam Bhatia: Mr Divan took the court through the second article. Hofstra Law R, 1988, p. 605, and said that the underlying the right of self-determination is the principle that every individual is a free person. He explained to the Court the issues that arose in Germany with respect to computer banks, and the FCC’s census judgment. The individual decides about their data – not the govt, not the data banks.

Mr Divan cites a 2008 article from the Toronto L R about dignity and equality, saying that the Nazis used formalistic notions of equality to achieve homogenity. The West German Constitution was a direct answer to this. Consequently, dignity, equality, and liberty are at the heart of the constitutional order.

He referred to the Canadian and South African constitutional orders, saying that “the value of informational self-determination is a value dear to the Petitioners before your lordships.”

Source: here, here, here, here, here, here, here, here, here.

He argued that the State lacked the legislative competence to nationalise a person’s own fingerprints. He said “if the State can have control over your body to this extent, taking your data and centralising it, that reduces us to vassals.”

He informed the court that children are being compelled to enrol into the Aadhaar system before they reach the age of free consent. Parents across the country have been coerced into attempting to enrol their children into Aadhaar because their food and schooling was made contingent on the production of Aadhaar numbers or enrolling into the database.

From Gautam Bhatia:
Mr Divan: Aadhaar coerces even children. How can you yoke children into this even before they have reached the age of consent?

Source: here and here.

The relationship between the citizen and the UIDAI is that of a trusteeship / fiduciary relationship and that no law can compel a beneficiary to entrust his data with a body that beneficiary does not actually trust. Divan told the court that biometric data collection was carried out by private enrollment agents whose relationship with the UIDAI is governed by a Memorandrum of Understanding. The Handbook prepared by UIDAI for Registrars specifies that registrars may retain biometric information with them, and also allows them to have their own security protocols etc which is an abdication of responsibility of sorts. Further, the UIDAI themselves warn the registrars – who may be banks, private companies like HDFC etc, that they are to hold the data in a fiduciary capacity. Retention of biometrics poses certain dangers. E.g., one an change my password but not my fingerprints.

“State cannot compel me to speak by making me part with my most sensitive information to private parties”

From Gautam Bhatia: Mr Divan took the Court through the income tax form, saying “I am required to give this information to private parties. 34000 enrollers have been blacklisted, remember. These third parties have no privity with the govt. Imagine their quality control. The only control the UIDAI has with them is a memorandum of understanding. The Registrar can retain biometric data. This is devastating. The powers given to the registrar for control over personal data creates a laughable situation. This is a complete destruction of personal autonomy. A debasement of my right to informational self-determination
Source: here, here, here, here, here, here, here, here.

Divan argued that the Aadhaar programme violates article 19 (1) (a) of the Constitution which guarantees the citizens of India the right to freedom of speech and expression and is a cornerstone of the democratic character of the state. He said “surely they cannot compel me to speak by making me part with my most sensitive information to private parties.”

From Gautam Bhatia:
Mr Divan: My next point: coerced demographic information amounts to compelled speech and violates Article 19(1)(a). “I am compelled to “speak” to someone I do not want to speak to. Surely they cannot compel me to speak by making me part with my most sensitive information to private parties.”

He cited the Mr Divan Bijoe Emmanual vs State of Kerala, 1986 SCR 3 518 case, where Bijoe Emmaneul held that Jehovahs Witnesses could not be compelled to sing the national anthem.

Mr Divan: The Jehovah’s Witnesses were respectful towards the anthem. We are willing to pay our taxes.
Source: here, here, here, here, here, here.

Making Aadhaar mandatory for PAN the government violates the principle of proportionality. According to data from a parliament question, a miniscule fraction (0.4%) of PANs are duplicate. The mandatory link of Aadhaar to PAN places an enormous disproportionate burden on people. Even those who have aadhaar are facing enormous problems linking their PAN cards for a variety of reasons including mismatch in names. To solve this problem, people will be required to either get new PAN cards or attempt the arduous process of correcting their Aadhaar details.

From Gautam Bhatia:
Mr Divan: The Union says that it is to prevent shell companies. That is clever drafting, but nothing beyond.

*

Mr Divan: The Union has no competence to nationalise my fingerprints. Eminent domain is confined to land. Not to the body of the individual. Consequently, you can do this only in narrowly tailored circumstances. If the State can have control over your body to this extent – taking your data and centralising it – that reduces us to vassals. At best, the State can act as a trustee or a fiduciary over this data, which is our personal property. I can change my password. I cannot change my fingerprints. In a world with this identity theft – in fact, the govt itself is publishing this data online – why compel me to part with this? Can a trustee compel the beneficiary to part with this?

Source: here, here, here, here, here, here, here, here, here

From CCG at NLU, Delhi:

While summing up, he also reiterated the argument on voluntariness, relying on Lord Atkin’s dissent in Liversidge v. Anderson (1942 AC 206) to emphasise that voluntary could never be interpreted as mandatory.
Source:here

Given that the decision of the Court would have far reaching impact and that the deadline for Aadhaar PAN linking of July 1st was fast approaching, he asked the bench to prevent this coercive action of the State.

From Gautam Bhatia:
The Constitution Bench had also realised the importance of this. They had asked the CJI to constitute a bench. All the previous orders of this Court had protected status quo. So please do not allow an irreversible situation. if not a stay, then at least prevent coercive action against me by the State for not having an Aadhaar.

Source: here, here, here, here, here.

Counsels for the third petitioner led by Mr. Anando Mukherjee, argued that there was a clash between the Aadhaar Act and the Income Tax Act. They explained that the Aadhaar Act allowed collection and storage of demographic information that specifically excluded “income” in its definition and that by linking PAN and Aadhaar, the Union was trying to do indirectly what they could not do directly under the Aadhaar Act.

From CCG at NLU, Delhi: it was contended that the definition of demographic information under the Aadhaar Act specifically prohibited collecting information related to income. By linking PAN with Aadhaar, Section 139AA was facilitating the convergence of income information, in direct contradiction with the Aadhaar Act. He argued that what was impermissible directly could not be permissible in an indirect manner.

From Gautam Bhatia: Petitioner No. 3 is taking the Court through the definitional clause, and submits that there is a clash between the Aadhaar Act and the IT Act. Income is not included in demographic information. What cannot be done directly cannot be done indirectly.

Justice Sikri: So what you’re saying is, information about your income goes into the Aadhaar database?
Petitioner 3: Yes, & that’s illegal

Senior Advocate Salman Khurshid takes permission to file written submissions.

Source: here, here, here, here, here, here.

*

Note: Gautam Bhatia was involved in assisting Arvind Data for this matter. Disclosure here.