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, Harish Salve, and others are representing for Union of India and UIDAI.
Today, 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.”
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".
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.
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"
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 siad “surely they cannot compel me to speak by making me part with my most sensitive information to private parties.”
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.
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.
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.
As the problems with the Aadhaar project are brought further into the light of day, there is an urgent need to rethink Aadhaar and to rethink the basis, intent, constitutionality and workability of this ever-expanding project.