"How can you engraft a provision into the Income Tax Act making Aadhaar mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary," argued Mr Shyam Divan, lawyer for petitioners
Two writ petitions challenging the latest amendment to the Income Tax Act are being heard at the Supreme Court by a bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan.
The amendment in question introduces Section 139AA that makes submission of one's Aadhaar/UID --- a 12-digit biometrics-based identity number for residents --- mandatory when filing of income tax returns and obtaining and retaining the Permanent Account Number (PAN), both of which will be implemented from July 01, 2017 onwards.
Thus, the amendment makes it a penal offence to not enrol for Aadhaar/Unique Identity Number if one is an income tax payer in India.
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 retired Major General Sudhir Vombatkere and Dalit activist Bezwada Wilson, who are represented by Senior Advocate Shyam Divan. Attorney General Mukul Rohatgi, and others are representing for Union of India and UIDAI.
Today, on April 27, senior Advocate 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.
In such a situation 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.
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.
The Attorney 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.
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.
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. 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.
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"
The Aadhaar project is unworkable, unreasonable, void, colourable and discriminatory.
Mr. Divan's arguments will conclude tomorrow after 2pm. The Attorney General will reply to these arguments next Tuesday.
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