The petitioners resumed their arguments in the case challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’). This provision mandates individuals to link their Permanent Account Numbers (PAN) with their Aadhaar number. The background to the case and our report from yesterday’s hearing can be found here.
The counsel for Maj. Gen. Vombatkere and Mr. Bezwada Wilson continued his arguments today. Today’s hearing commenced with pointing out that despite the government’s assurances, the Aadhaar framework was extremely porous and ineffective. That 34,000 enrolment agencies have been blacklisted was pointed out to substantiate this claim. It was also pointed out that biometric technology itself is fallible – instances of a hacker successfully copying the German Defence Minister’s fingerprints and Angela Merkel’s iris scans were also pointed out. Further, replies to RTI queries showed that more than eighty-five lakh Aadhaar numbers had been de-activated due to biometric and demographic errors discovered later. The counsel also apprised the bench of Aadhaar numbers being issued to dogs, trees, chairs and ‘Coriander s/o pulao’. Pertinently, he outlined concerns about Aadhaar data being leaked by several state and central government portals. These facts were brought to the Court’s attention to emphasise that the petitioners were conscientious objectors to the Aadhaar project and had serious apprehensions regarding its robustness, among other issues.
With the court’s permission, the counsel then revisited the Supreme Court’s interim orders in the main challenge to Aadhaar. He pointed out that due to the reference order, and the difficulties associated with forming a large bench, the case had essentially been ‘canned’ or ‘put in deep freeze’. However, he emphasised that at each stage, judges had been conscious of the gravity of issues involved and had consequently protected citizens with strong interim orders. This was done to protect individuals’ interest and prevent a situation of fait accompli. Particularly with respect to the order passed on 15 October 2015, it was pointed out that the Central Board of Direct Taxes was also a party before the Court in that interim order.
The counsel highlighted the graveness of the issues involved. If allowed, Aadhaar was likely to fundamentally alter the relationship between the citizen and the state and put every citizen on an ‘electronic leash’, enabling real-time surveillance. The Attorney General objected to this line of argument, contending that issues of privacy must not be raised in this case, in light of the pending reference.
On the issue of Section 139AA specifically, it was prayed that the provision must either be struck down or read down to make it voluntary. The submission was that the scheme of the Aadhaar Act was purely voluntary – it created a right to enrol for Aadhaar, but imposed no duty to do so. Reading sections 3 and 7 of the Act, he argued that in addition to being purely voluntary, the only detriment could be the denial of a benefit or service. Since paying tax was neither, one could not be compelled to part with their biometrics. He also argued that the Act and the enrolment process contemplated free and informed consent. When viewed in this light, the mandatory nature of Section 139AA was in direct collision with the scheme of the Aadhaar Act. Justice Bhushan interjected pointing out that the scheme of both statutes was different, and that made the legislation under challenge permissible. To this, it was submitted that a voluntary scheme could not be grafted onto the IT Act as a mandatory provision.
To support this contention further, it was contended that converting a right into a duty amounted to a colourable exercise of legislative power. Further, being coerced to enrol for a scheme that is essentially voluntary negates consent, rendering the legislation unworkable.
The petitioners’ counsel then apprised the Court regarding the penal consequences that would arise in the event of non-compliance with Section 139AA. These included higher Tax Deducted at Source (TDS), a penalty for failure to furnish income and a fine of Rs. 10,000 for not possessing a PAN card. Further, disabilities associated with not having a PAN under Section 114B were reiterated. On being queried by the bench whether PAN being mandated was the same as any other alternative (such as Aadhaar), it was argued that Aadhaar was intrusive to an unprecedented level. PAN, on the other hand, was not intrusive to one’s body. Routine transactions such as opening a bank account or purchasing a motor vehicle should not me made contingent on parting with biometrics.
The bench also quizzed the petitioners on the issue of giving up biometrics for passports and other similar circumstances. The counsel responded distinguishing such circumstances, arguing that in certain limited situations, such identification might be legitimate and necessary. This would be different from Aadhaar, where biometric authentication would become ubiquitous. Other circumstances would include identifying prisoners. Additionally, such information would be stored locally and only used for a limited purpose.
It was also argued that under Section 30, the Aadhaar Act itself defined biometrics as sensitive ‘personal’ data or information. Reference was also made to Section 43A of the Information Technology Act to emphasise that ‘personal’ information is of, and belongs to a person. Being intimate parts of the body, biometrics could not be considered a dominion of the state. Reliance was also placed on On Jurisprudence by Salmond and the Oxford Handbook on Jurisprudence and Philosophy of Law to highlight that the right of bodily integrity included ‘exclusive possession and use of his or her own body as against everyone else’. The petitioner’s counsel went on the state that the Indian Constitution does not establish a totalitarian state but creates a state that is respectful of individual liberty and freedoms. Drawing from the preamble and emphasizing on the idea of a limited government, he said that the Indian Constitution is ‘not a charter of servitude’.
The petitioner’s counsel took the Court through a host of judgments for the proposition that the right to life extended to a right to protect one’s body and identity from harm. He cited landmark judgments such as National Legal Service Authority v. Union of India and Others (2014) 5 SCC 438 and Sunil Batra v. Delhi Administration and Others (1978) 4 SCC 494 to emphasise that personal liberty went beyond mere animal existence. He also touched on the context of bodily integrity, informed consent and self-determination as essential facets of Article 21, read with Articles 14 and 19.
As a final argument, it was argued that the object of the statute itself was discriminatory. Section 139AA discriminates between a homogenous class of assessees – individuals willing to part with biometrics to enrol for Aadhaar and those who’re unwilling to do so. The provision unreasonably discriminates against the latter by subjecting them to grave penal consequences, given that both categories are willing tax payers. A voluntary scheme could not, and should not deprive individuals of their choice.
The petitioners’ counsel also briefly touched upon the concept of ‘informational self-determination’ and argued that the state did not have any imminent domain regarding one’s body. Parting of sensitive features such as biometrics should be subject to one’s control and consent.
Arguments on behalf of the petitioners are likely to be concluded tomorrow. The Attorney General, representing the Central Government, is likely to advance arguments on Tuesday (May 2).