Shyam Divan: Aadhaar is purely Voluntary
Today’s update from constitutional challenge to linking Aadhaar and PAN from the Supreme Court
Arghya Sengupta started with two broad arguments for the Union of India and UIDAI. (1) That proportionality could not be read into Article 14, and (2) The idea of informational self-determination was equivalent to privacy and privacy was referred to a larger bench.
He countered the proportionality arguments by citing judgments from the UK.
He said that a statute could not be struck down for disproportionate penalty because penalty could be decided by the wisdom of Parliament.
He said that the object of this amendment is to fight corruption but no legislative order can completely solve any problem 100%. Sengupta said the object of the amendment is not to discriminate between those who have Aadhaar and those who don’t but rather to weed out fake PAN cards.
He then argued that informational self-determination is not absolute even in Germany, and it could not be read into Indian law and that it could only be understood to be a party of privacy.
Justice Sikri said that the right to be left alone is a question of a person’s own life. The question lay in whether in a tax regime you could exercise your right and say that you would pay taxes in the manner you chose to. Sengupta responded by quoting Oliver Wendell Holmes, “taxes are the price we pay for civilised society”, he said. Sengupta admitted that there were technical difficulties and errors in the UID system but maintained that biometrics was the best technology in existence.
Zoheb Hussain appearing for the UIDAI said there is a distinction between protected and unprotected speech and that distinction will always be maintained. Every action is not speech. Enrolment for Aadhaar does not amount to exercising the right to free speech. He argued that the object of the amendment was to fight black money, increase tax collection and therefore reduce inequality. The object could not be said to be discriminatory because it was in furtherance of equality.
Senior Advocate Shyam Divan appearing for the petitioners responded to these arguments. He began by establishing again the credentials of the petitioners. He said “it is being alleged that I am a hermit who wants to live in the Himalayas.” In fact the petitioners are a decorated Major General in the Army and the other, a Magsaysay Award winner for his work with the Safai Karamchari Andolan. “The petitioners live robust lives and are contributors to society.”
He said that the concern raised about Aadhaar was not an elite concern, rather that it was a concern of civil liberties. “The citizens of what we regard to be a free country are being mandated to be fingerprinted.”
Mr. Divan went on to explain that “Aadhaar is voluntary but PAN is mandatory.” The Income Tax Act makes PAN mandatory and the lack of PAN leads to penal consequences. Aadhaar is completely voluntary. The Aadhaar enrolment form says that Aadhaar is free and voluntary, Section 3 of the Aadhaar Act says that a resident is entitled to get an Aadhaar number, several advertisements in which the UIDAI itself said that Aadhaar was voluntary.
Subsequent provisions specify that residents must be informed how their data will be used. Every requesting agency under the Act must ask for the consent of the individual Aadhaar number holder. Consent and information required under the Act can only exist if Aadhaar is voluntary. He said “it is untenable to claim that Aadhaar can be made mandatory when the statute says that it is voluntary.”
Mr. Divan cited a definition of fraud laid down in a judgment and asked whether UIDAI was committing a fraud on the public at large. He said that an institution of the government could not commit fraud on the public and so the only conclusion could be that Aadhaar is voluntary.
He explained that the object of 139AA was discriminatory because it discriminated between those who chose to give up their biometrics and those who didn’t. Some people chose Aadhaar but PAN is not replaced by Aadhaar.
Mr. Divan cited a news report where a newborn child was given a UID number before he was given a name because without UID he would not get a birth certificate. Mr. Divan asked “Can you have a system where a child is tagged and numbered before he has a name? Can you have a system of surveillance? It will destroy all political choice.”
The UID project violates Article 19(1)(a) because it requires individuals to give my most sensitive information – not to the Government of India – but to unknown third party enrolling agencies.
On the Union’s argument that fingerprints are collected under the Registration Act, he explained that to buy property, fingerprints were given on paper in a process totally distinct from giving fingerprints to a central database where they could be repeatedly authenticated. He said that there might be some instances where invasion of the body might occur (e.g., hospital procedures or wearing helmets, seat belts), but all these actions are protective in nature and to protect the body.
Finally, he showed the Court a reply to an RTI where the UIDAI admitted that only 0.03% of people who had enrolled in Aadhaar had no other form of identity before. He also pointed out that in another RTI query the UIDAI admitted that 1 lakh Aadhaar numbers had been cancelled due to duplication.
Mr. Datar began his rebuttal by stating that the basic argument being made by the Union and UIDAI was “what is your problem?” Mr. Datar said “But one must remember civil rights movement started with a woman made to sit at the back of the bus. No one told her not to make it a big deal.” He argued strongly that condoning the violation of the interim orders of the Supreme Court in the earlier batch of petitions would have grave consequences for the rule of law.
Mr. Datar will complete his submissions tomorrow.