Final hearing of Aadhaar in Supreme Court – Day 26


This post is essentially a compilation of tweets from Gautam Bhatia, Prasanna and SFLC to understand how the Aadhaar hearing happened in the Supreme court.


Day 26: 10 April ’18

Attorney General K.K Venugopal to conclude and Additional Solicitor General Tushar Mehta to commence arguments for the state.

  • Attorney General, K.K Venugopal resumes his submissions.
    • Explains retrospective saving of Acts.
    • Says Section 59 of the Aadhaar act provides retrospective effect.
    • Cites cases to show that a particular action can be validated by a subsequent Act, as it happened in the case of Aadhaar.
    • Reads out the third version of the Aadhaar enrollment form. reads out the content and says it’s free and voluntary and has provisions for taking informed consent.
  • Justice Chandrachud: The first two forms did not have any reference to biometrics. It was only inserted in the third form. State argues that the first two forms were hardly used because the government had only mandated enrollment of 1cr individuals.
  • Attorney General says that the CBI had gone to Bombay high court to obtain biometrics in connection of a rape, since UIDAI had refused to provide them as biometric data cannot be shared without the individual’s consent.
    • Reads out from Justice Chandrachud’s part of the Puttaswamy judgement about “reasonable expectation of privacy”.
    • Says that the state has no interest in collection of biometrics except for the benefit of the individual himself. Emphasizes that invasion is privacy is minimal.
    • When there was no right to privacy, the government acted in a bonafide manner when they enacted Aadhaar. Therefore that action cannot be said to be void by retrospective action.
  • Justice Chandrachud: the question of privacy was irrelevant in MP Sharma. Only the first part of Kharak Singh affirmed that there’s a right to privacy. The subsequent judgements that affirmed privacy relied on the first part of Kharak Singh.
  • Attorney General does not agree with this interpretation.
  • There’s some discussion on excessive delegation.
  • Bench rises for lunch.
  • Afternoon session.
  • Attorney General resumes his submissions. Cites some cases on excessive delegation.
  • Justice Chandrachud remarks that section 2(g) of the Aadhaar act is not so much a question of delegation of legislative power but more about proportionality.
  • Attorney General has just finished.
  • Tushar Mehta to start arguing for the UIDAI. He outlines his submissions.
    • He begins by saying that the issue of PAN/Aadhaar linkage (challenge to section 139aa) has already been considered exhaustively by the Court in Binoy Viswan.
    • Says that in the privacy judgment, the Court has held that privacy can be subject to reasonable restrictions. (all nine judges have affirmed that right to privacy is not absolute)
    • Says Justice Chandrachud laid down the three tests under which privacy can be invaded in particular cases. Five out of nine judges have upheld the principles of legitimate state interests and proportionality.
    • Says that a legislation has to pass all four tests to be valid. Three laid down in Puttaswamy and also the test of manifest arbitrariness (Shayra Bano judgment)
    • Even in Binoy Viswam’s case, all these tests have been examined, although in the context of Article 19.
    • Says that another ground for valid restriction is that of “larger public interest.”
  • Chief Justice of India says that there is not much difference between legitimate state interest and larger public interest. i.e., Satisfying legitimate state interests is enough to prove larger public interest.
  • Tushar Mehta says that the larger public interest in linking is preventing income tax fraud, black money, and terrorism.
    • Since 1989, PAN numbers are mandatory. All demographic information that is now required under Aadhaar was required under PAN under section 139a of the income tax including left hand thumb impression.
  • Bench points out that that’s for people who can’t sign.
  • Tushar Mehta says that the point is that people were giving thumb impression.
  • Justice Sikri says that in any case, this thumb impression is only on the form, and that is the difference.
  • Tushar Mehta says that now they are digitally stored.
  • Justice Chandrachud: And there’s no authentication.
  • Tushar Mehta: I’m only saying that with respect to privacy, this regime has been in place since 1989. Those who have already taken PAN do not have any legitimate interest in withholding information that they have already provided for obtaining PAN.
    • Requirement of Aadhaar is to ensure deduplication through a robust technological regime. There is empirical data to show the larger public interest.
    • Coverage of Aadhaar is more than 99%. Aadhaar being unique, deduplication is more systematic.
    • Multiple PAN cards cause black money, money laundering and shell companies.
    • In 2006, a large number of PANs were found to be duplicate. This problem still exists. 11.35 lakh cases of fraudulent PANs have been detected.
    • Says that PAN can be misused for the purpose of tax evasion, black money, setting up shell companies etc.
    • Income Tax Act applies only to taxpayers. He says that Aadhaar will ensure that one person has one PAN by interconnecting the PAN-aadhaar database.
    • Quotes the Shah Committee SIT on black money which recommended interconnection of databases and a central KYC registry.
    • Says that Aadhaar can achieve this through a federated architecture without aggregating information.
    • Says even companies need pan cards. And the documents used for obtaining PAN can be easily forged. Therefore, Aadhaar with the use of Biometrics will prevent that.
    • Emphasizes that fake PAN cards are used to create shell companies abroad and Aadhaar can make sure that this does not happen.
    • Fake PAN cards have facilitated the growth of large shell companies who have fake shareholders who open numerous bank accounts with fake ID cards.
    • Says he has data to show how linking has helped solve the problem.
    • Says uniqueness of pan is important. Deduplication test needs to be conducted. Demographic way of verifying de duplication is not fool proof.
    • There are multiple PANs allotted to one person, and one person has several PANs. Verification of original documents is only 0.02%. For Aadhaar the verification is 100% as biometrics and Iris scans will be used.
    • It is a robust way of deduplication.
    • Duplicate Aadhaars are almost non-existent.
    • Discusses various frauds involving PANs. Starts with a case in Gujarat. This case involved the creation of bogus DEMAT accounts through use of other people’s photograph.
    • Gives an example of how a lady created 3000 bogus demat accounts by obtaining people’s photographs.
    • With Aadhaar, enforcement agencies can Red flag and prevent such transactions in the future.
    • Discusses more cases of frauds involving multiple PANs and shell companies.
    • Says that in 2009, there were plans for a biometric PAN, but then Aadhaar came in, so those plans were dropped.
    • Talks about widening the tax base.
    • Quoting statistics on the difference between PAN cards and tax base.
  • Justice Sikri says that this difference may not simply be because of duplicates. Nowadays for a lot of transactions you need a PAN.
  • Tushar Mehta is reading out from a CAG report.
  • Justice Sikri says that is the only basis for this assessment orders – because they are often set aside. The figures do not reveal how much of this difference is caused by duplicate PANs.
  • Tushar Mehta says that he will check.
  • Justice Chandrachud says that the same ingenuity for PAN scams can happen with Aadhaar.
  • Tushar Mehta says that no system can be foolproof. They are trying to make it better.
  • Justice Chandrachud says that we are always trying to stay one step ahead of the lawbreakers.
  • Tushar Mehta says that if we have a better technology, we must implement it.
    • Says that technology is being upgraded on a daily basis.
    • Finance minister has described financial frauds in his Feb speech.
    • Says that the tax to GDP ratio is very low.
    • Reads out various figures to show this.
    • Says that we are a tax non-compliant society and the predominance of cash makes this possible.
    • Says that those who evade taxes create a burden on those who pay honestly. He say that “on a lighter note”, this also applies to people claiming their “privacy.”
    • Talks about India’s obligations under international legal instruments such as the FATCA and the CRS.
    • Says that fake PANs will create a major embarrassment for the country with respect to international obligations.
    • Says that these are all the justifications for linking PAN with Aadhaar.
    • Talking about the benefits of linking Aadhaar with PAN in terms of efficiency and security.
    • Quotes that 4 cr out of 36 cr tax payers have already linked their Aadhaar with pan, says ASG. Even transgenders are included without having to disclose their gender.
    • Says that in Binoy Viswam’s case, the Court has dealt with all these issues under section 139aa on the four tests.
    • Even though the court did not deal with privacy in that case, the court applied all the tests that are used to test privacy violations.
  • Justice Bhushan: You’ll have to prove there’s no violation of privacy.
  • Tushar Mehta says that effectively the privacy judgment (Puttaswamy) and Shaira Bano retrospectively ratifies the Binoy Viswam judgment. This bench is not sitting in appeal over that judgment. Therefore, the observations in that case cannot be reopened. (NB: Binoy Viswam was decided by Justice Sikri and Justice Bhushan who are also on this bench. This is the Aadhaar PAN judgment from last July.)
  • Bench rises. To continue tomorrow.
2018-04-11T10:23:46+00:00April 10th, 2018|Aadhaar|0 Comments

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