- Apprentice Lawyer
- Legal Jobs
A case which was heard by the Supreme Court of India over the course of six days, a case which came to be widely discussed on social media but did not get the attention it deserved on other electronic media. A case in which Attorney General Mukul Rohatgi made certain submissions, which raised quite a few eyebrows.
Above all a case, which started trending hashtags on Twitter in the name of two Senior Advocates of the Supreme Court of India – Senior Advocate Arvind Datar (#ThankYouMrDatar) and Senior Advocate Shyam Divan (ThankYouMrDivan).
The case was the challenge to Section 139AA of the Income Tax Act, which makes Aadhaar mandatory for filing Income Tax Returns.
The provision – Section 139AA
“139AA. (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of July, 2017, quote Aadhaar number—
(i) in the application form for allotment of permanent account number;
(ii) in the return of income:
Provided that where the person does not possess the Aadhaar number, the Enrolment ID of Aadhaar application form issued to him at the time of enrolment shall be quoted in the application for permanent account number or, as the case may be, in the return of income furnished by him.
(2) Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette:
Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number.
(3) The provisions of this section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by the Central Government in this behalf, in the Official Gazette.
Explanation.—For the purposes of this section, the expressions—
(i) “Aadhaar number”, “Enrolment” and “resident” shall have the same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016;
(ii) “Enrolment ID” means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment.’”
The Bench, the parties and their lawyers
The two petitions challenging Section 139AA were heard by a Bench of Justices AK Sikri and Ashok Bhushan.
The lead petition was filed by CPI leader Binoy Viswam. The petition was drawn and filed by advocate Sriram P. Senior Advocates Arvind Datar and Salman Khurshid appeared for Viswam.
The second petition was filed by SG Vombatkere, a retired Indian Army Officer and Bezwada Wilson, founder and convenor of Safai Karmachari Andolan. The petition was drawn by advocate Udayaditya Banerjee and filed by M/s. KJ John & Co. Senior Advocate Shyam Divan appeared for Vombatakre and Wilson.
The Central government was represented by Attorney General (AG) Mukul Rohatgi with Vidhi’s Arghya Sengupta assisting him. Advocate Zoheb Hossain served as the Advocate-on-Record.
Interestingly, no other law officer appeared for the Central government and it was Sengupta who held the fort for the Centre when the AG left the country midway to attend Human Rights Conference in Geneva.
This evoked some interesting reactions on Twitter:
The hearing lasted for six days (though not continuous) from April 26 to 28 and from May 2 to May 4. Below are the major submissions made by the lawyers appearing for different parties:
As soon as the hearing began, Attorney General Mukul Rohatgi made a submission which, it seems was anticipated by the petitioners. He submitted that challenge to Aadhaar based on right to privacy as a facet of Article 21 is already pending before the Supreme Court. He further stated that an Article 32 petition cannot lie if the said ground of violation of right to privacy as fundamental right is not taken.
“Article 32 will lie only in case of violation of fundamental rights. If there is no challenge regarding right to privacy then why come to Supreme Court”?, he said.
However, Senior Advocate Shyam Divan responded to it by saying that they are challenging the vires of section 139AA on the ground of violation of Articles 14, 19 and 21 and they will not raise the right to privacy issue.
“We will not argue on privacy issue at all”.
Datar for Binoy Viswam
Datar appearing for Viswam, proceeded to make his submissions. He began his submissions by saying that the provision was not part of the original Finance Bill.
“There is nothing in the Finance Minister’s speech on why this provision was inserted.”
Supreme Court order
One of the major submissions of Datar hinged on the Supreme Court order of 2015, which records the submission of the Central government that Aadhaar is voluntary and not mandatory.
He contended that the Central government had given an undertaking to the Court that it will not make Aadhaar mandatory except for certain social welfare schemes.
“Undertaking by the Union of India says that except for some social welfare schemes, it will not be mandatory. How can they then go ahead and make it mandatory under the Income Tax Act? All the States were represented before your lordships when the Attorney General made it clear that Aadhaar will be voluntary. Moreover, it is not a mere undertaking now because there is an order to that effect by a Constitution Bench of this Court…para 5 of the order says that Aadhaar cannot be made mandatory.
The Supreme Court order that Aadhaar is voluntary and not mandatory is binding on Parliament and Executive. I am not disputing the sovereignty of the Parliament but as long as the order of Supreme court stands, Section 139AA cannot be enacted”, he said.
This led to a discussion between the Bench on the scope of the Supreme Court order. The question raised by the Bench was that since the Supreme Court order only stayed executive action with respect to making Aadhaar mandatory, could the Parliament be refrained from legislating contrary to such an order.
“The question relating to Article 21 and privacy is still pending before the Court. The interim order of the Court was with respect to the executive action. So will it stop the Parliament. Can’t the Parliament go ahead and pass a law in the meantime?” asked Justice Sikri.
Datar responded by saying that once the Supreme Court has passed an interim order, it is not open to the Parliament to say that the order is only with respect to executive action. He submitted that what the Parliament can do to get over it is remove the very basis of the order – in this case the Aadhaar Act.
“The only way you can remove the basis is to make Aadhaar mandatory by amending the Aadhaar Act.”
Aadhaar Act and IT Act
Another of Datar’s main contentions was that Aadhaar is not mandatory under the Aadhaar Act and hence it cannot be made mandatory under IT Act.
“Unless the parent Act, that is, Section 3 of Aadhaar Act is amended to make it mandatory, it cannot be made mandatory under IT Act.”
He submitted that since the Aadhaar Act did not make it mandatory to obtain an Aadhaar and instead only conferred a right upon the individual, Section 139AA could not cast a duty to obtain Aadhaar without a non-obstante cause.
Datar was particularly critical of the proviso to Section 139AA, which states that in case of failure to intimate the Aadhaar number, the Permanent Account Number (PAN) allotted to the person shall be deemed to be invalid.
Datar argued that this would mean that PAN would be invalid retrospectively. This was, however, refuted by Attorney General Mukul Rohatgi who clarified that it would be invalid only prospectively.
Datar said that the impugned provision discriminated against individual assesses, since partnership firms etc. can continue to file IT returns without Aadhaar.
“Thus, the class of individual assessees are discriminated against when compared to firms.”
He also raised the issue of arbitrariness. Though arbitrariness is usually used as a ground to strike down administrative actions, Datar contended that it can be used to challenge primary legislations too. He relied on the case of Mardia Chemicals to buttress his argument.
Datar’s contentions regarding violation of Article 14 was, however, met with constant questions by the Bench. The Bench observed that if the Legislature takes a decision to replace PAN with Aadhaar, that would only be a matter of policy unless the issue of privacy is involved.
“Suppose PAN is replaced by Aadhaar, and there is no issue of privacy, then will your challenge stand?” Justice Sikri queried.
In his rejoinder arguments Datar told the Court that the Centre was not able to show any “reasonable nexus” to the object sought to be achieved by the impugned provision.
“They say terrorism, black money etc. Is it like a herbal medicine, panacea?” he asked.
Datar’s rejoinder arguments were weighty and he concluded by leaving the Bench to ponder over a lot. Some of the salvos fired by him, as he drew his submissions to a close, are:
Shyam Divan for Vombatkere and Wilson
Not a totalitarian State, not a Nazi concentration camp
His initial submissions bordered on bringing in the aspect of Right to Privacy as he argued that an individual’s fingerprints and iris scan are his property and a State cannot forcibly take it under a democratic setup.
“The petitioners understanding is that the State in India, under this Constitution has no right over their bodies. In a totalitarian State, an individual is just a number, but that is not the case in India. Indian constitution does not establish a totalitarian State. It is not a Charter of servitude.
My finger print and iris scan are mine. The all-powerful Republic of India cannot coerce me into parting with it for paying taxes”, he submitted.
Divan cited the dangers of finger prints and iris scans being used by the State to act as an “Electronic leash”.
“There is no bargain permitted under our Constitution by which the State can say ‘Give me your fingerprint and I will tether you electronically’.”
Terming it an electronic leash, Divan likened Aadhaar to the number tagging in Nazi Germany.
“Nowhere in the world such number tagging is done. It used to happen in [Nazi] concentration camps. [Is the state] by an electronic leash, going to walk us around like a dog for the rest of our life?”, he asked.
Divan also devoted a good portion of his initial time to explain the problems of parting with bio-metrics. He cited examples of how fingerprints and iris scans were misused in Germany by taking high resolution photographs during press conference with the same being used to hack into information on defence department.
Under Aadhaar Act, it is voluntary
One of the major submissions canvassed by Divan was that obtaining Aadhaar is voluntary under the Aadhaar Act. Hence, the government cannot make it mandatory under the Income Tax Act.
“Likewise the entire Aadhaar act is voluntary. It creates a right in favour of citizens to apply for Aadhaar. If you choose not to apply, you may not get some benefits. Nowhere does the Aadhaar Act says that it mandatory to obtain an Aadhaar. There is nothing in the Act which says not obtaining Aadhaar will lead to any consequences.”
Divan then proceeded to cite the contents of the website of UIDAI which says that obtaining Aadhaar is voluntary.
“If you go to the website of UIDAI, it clearly states it is voluntary. So the Attorney General’s client is publicising that it is voluntary but the Attorney General himself argues that it is compulsory”
Divan then criticised the Central government in strong words for making arguments contrary to what is provided in the statute.
“I think it is unsuitable for the Union to argue it is mandatory, when the statutory provision clearly says it is voluntary.
Article 14 – Object itself is discriminatory
The argument canvassed by Divan to assert violation of Right to Equality was that the very object of the provision was discriminatory.
“It creates two classes of assessees – those who are willing to part with their bio-metrics and those who are not.
By visiting a conscientious objector or any other person who does not have an Aadhaar with severe consequences the impugned provision in itself is discriminatory and violative of Article 14.”
He placed reliance on the case of Nagpur Improvement Trust v. Vithal Rao to buttress his argument.
Besides, Divan also submitted that the object of Income Tax Act is to provide a mechanism for payment and collection of taxes.
“Parting with biometrics or possessing an Aadhaar does not have any rational nexus to the requirement of payment of tax under the Act”
Article 21 – Bodily Integrity and Informational Self-Determination
Divan stressed on the aspect of informational self-determination which was developed by the Federal Constitutional Court of Germany. Stressing on personal liberty and dignity as the basis of informational self-determination, Divan argued that an individual’s biometrics and iris scan are the property and entitlement of that individual and the State cannot coerce an individual to part with the same under the threat of penal consequences.
“Right to life includes bodily autonomy and personal integrity. Personal bodily integrity is guaranteed under Article 21 and each person has the fundamental right to self-determine as to what he or she would like to do with his or her body, finger prints and iris scans that are biometrics impressions of the body.”
Divan invoked foreign jurisprudence to argue that informational self-determination is essential in a free and democratic society.
“The basis for self-determination is the principle that every individual is a free person. Hence, it is the individual who decides what should be done about personal private data, not the government.”
Divan further argued that the Doctrine of Eminent Domain, which entitles State to compulsorily take away individual’s property for public purpose cannot be extended to human body.
“State at best is a trustee and it cannot compel me to part with my property. Eminent domain is limited to land property etc and not to human body.”
He stated that any collection of biometrics can only be done through free and informed written consent on the part of the individual and Section 139AA effaces this concept.
Parting information with private third parties
Another significant submission canvassed by Divan was that the biometrics are not collected directly by any government official but by private third parties and the same is a very porous system.
He submitted that for the purpose of enrolling with Aadhaar, an individual has to give his personal details to a private third party thereby risking his personal data.
“Around 34,000 such private enrollers have been blacklisted, around 3.84 lakh Aadhaar numbers have been cancelled”, he said.
Divan’s submission in this regard was that the legislative competence of the Union to impose taxes under Entry 82 of List I does not include the right to enact the impugned provision.
“The Union has no competence to nationalise my fingerprints. Such right can be exercised only in narrowly tailored circumstances.”
The basis for the contention of violation of article 19(1)(a) was that collecting personal information by coercion amounted to compelled speech and hence violated freedom of speech and expression.
“I am compelled to speak to someone I do not want to. They compel me to speak to a private third party by making me part with my most personal information”.
Divan cited numerous cases including the case of Bijoy Emmanuel v. State of Kerala to buttress his case.
Humpty-dumpty and other some other punches by Divan
Divan’s arguments as usual were peppered with ‘punch dialogues’. The following stood out:
Attorney General Mukul Rohatgi, Arghya Sengupta for Central government
Attorney General Mukul Rohatgi appeared for the Central government along with Arghya Sengupta. They were assisted by advocate Zoheb Hossain.
The Attorney General began his submissions by stating that Shyam Divan’s submissions were essentially arguments on right to privacy though couched under different names.
“Everything that Mr. Divan argued was on right to privacy, though he called it bodily integrity. You can call it whatever you want.”
He contended that challenge to any provision can be only on two grounds – legislative competence and Constitutional violation.
“Legislative competence cannot be argued here because IT Act is solely in the province of the Parliament. So the round available is constitutional violation.”
On Article 19
The argument on this was brief and curt.
“Income Tax by its very nature is coercive. So, Article 19 violation cannot be argued”
On Article 21, Bodily integrity and PAN
The arguments of the Attorney General regarding these three aspects were intertwined.
The AG began by comparing Aadhaar with PAN.
“It is significant to note that Section 139A which deals with PAN is not under challenge. This provision was enacted in 1975 to provide for identification of tax payers. Anybody with a Driving License or Ration card could obtain a PAN card. PAN used individual’s photograph and fingerprint. In simpler words, it was photograph and fingerprint on paper. Today, photograph and fingerprints on paper have been replaced by electronic counterparts.”
AG’s next submission received lot of press and was subject of much debate on social media and elsewhere.
The submission related to bodily integrity and right to body. AG submitted that the right of an individual over his or her body is not absolute and can be restricted by the State. He cited restrictions on organ trade, driving under the influence of alcohol etc. to make his point.
“Trading in body organs is not permitted. Similarly, there are restrictions on drunk driving. So the State can exercise control over your body. Right to body is not absolute”, he said.
Fake PANs and benefits of Aadhaar – To weed out black money, bring tax evaders within tax net
Another point canvassed by the AG was regarding fake PAN cards. He contended that PAN cards could be obtained using secondary certification like Driving License or ration card.
“The secondary ids are localised ids, these ids can be forged. So the basis for PAN cards were secondary documents which were not fool-proof. Experience showed us that unscrupulous people could make fake PAN cards and there were issues of shell companies.”
He argued that this led to problems like black money etc. and hence a more effective identification tool was required.
“So, the point is that the programme of PAN became suspect. So it was decided to bring in a more robust system so that ids cannot be faked. And Aadhaar is currently the most foolproof system. The biometrics are collected, it is encrypted and stored in a Central database of the Government of India. It cannot be given to anybody except on demand of courts in case of crimes etc”
It was also Rohatgi’s contention that Aadhaar is an effective tool for checking black money, terrorist financing etc.
“Linking Aadhaar with PAN will remove bogus PAN cards, expose shell companies and thereby curb the menace of black money, money laundering and tax evasion”.
Regarding leakage of Aadhaar numbers
Rohatgi’s repeated answer to the same was that the leak did not happen from the Central government’s database. Instead, it happned from the government offices of State governments like Jharkhand.
Besides, he said that the biometrics were not leaked but only the Aadhaar numbers were compromised and it will not cause any substantial damage.
“It was not that biometrics were leaked. Only Aadhaar numbers were leaked. PAN numbers of individuals are known by 100s of other people. So, leakage of Aadhaar is nothing big. The idea is that biometrics should not be leaked.”
Regarding discrepancies in Aadhaar Act and Income Tax Act
The AG dealt with this aspect in a very brief manner stating that both are substantive legislations on equal footing and the Aadhaar Act is not a parent Act.
“There is no parent Act and subsidiary Act. Both Aadhaar Act and IT Act are substantive legislations.”
The Attorney General was in his elements and the following stood out in his day long arguments:
Arghya Sengupta on Article 14, arbitrariness and informational self-determination
Sengupta was entrusted the task of rebutting the submission relating to Article 14 violation.
He rebutted the argument relating to arbitrariness by citing different case laws. Datar had relied on the case of Mardia Chemicals to argue that arbitrariness can be a ground for striking down not just executive actions but even legislations.
However, Sengupta submitted that the same is not the settled position. He argued that subsequent cases of Subramanian Swamy v. Union of India and Rajbala v. State of Haryana counters that argument.
“In Subramanian Swamy v. Union of India, this question was considered but the court did not answer it. Instead it held the law unconstitutional on the ground of unreasonable classification. In Rajbala, the Court held that a law cannot be declared unconstitutional on the ground of being arbitrary.”
Regarding the contention that the object of the statute itself is discriminatory, Sengupta contended that a law “cannot be held discriminatory because the conscientious objectors have a moral objection.”
Rebutting the contention of right to informational self-determination, Sengupta advocated for interpretation of the doctrine in the light of Indian context and not by what the standards of privacy in foreign countries.
After Sengupa concluded, advocate Zoheb Hossain made some brief but interesting submissions for the Centre. He argued far from violating Article 14, the impugned provision in fact promotes Article 14 since it seeks to arrest the inequality between tax payers and tax evaders.
“Introduction of Aadhaar does not infringe Article 14, instead it promotes it and gives it new meaning.”
The hearing drew to a close with some brief submissions made by Senior Advocate Salman Khurshid who appeared for Binoy Viswam.