Final hearing of Aadhaar in Supreme Court – Day 35


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 35: 2 May ’18

Advocate Zoheb Hossain continues his submissions for State of Maharashtra and UIDAI followed by Attorney General K. K. Venugopal who comes back to defend.

  • Hearing will begin shortly.
  • Zoheb Hossain hands over a bunch of international charters and covenants to the bench on harmonization of socio-economic and civil political rights.
  • Justice Chandrachud says that directive principles of state policy are essential for good governance and are a guarantee of reasonableness of a law. Directive principles even though not justiciable are read into Article 21.
  • Zoheb Hossain: Data protection law is a positive obligation of the State.
    All rights give rise to a variety of duties. Aadhaar is a project to ensure socio economic rights of the people.
    • Reads out Justice Wadhwa Committee report on public distribution system and food security.
    • In the case of DK Trivedi it was held that when a statute confers discretionary powers to the exec, the validity of the statute cannot be judged by assuming that the executive will act in an arbitrary manner and abuse it’s power.
    • In the same case, it was held that there is a constitutional obligation on the state to ensure socio economic welfare of the citizens which includes prevention of leakages in public distribution systems.
    • In the case of Unnikrishnan, the court relied on UDHR and ICCPR and read education as a social right.
    • Reading out parts of the ICCPR.
    • All human rights are equally important, indivisible and are interconnected. Socio economic rights are as important as civil and political rights.
    • Reads out a UN General assembly resolution which says that ideal of freedom can only be achieved if conditions are created so that everyone can enjoy socio economic and civil political rights.
    • To judge proportionality, reasonableness of the measure/restrictions have to be shown from the point of view of the general public and not from the PoV of one affected party.
    • Right to privacy is an individual right which can be highly subjective or objective and the state can’t be held to be vicariously liable for it. No petitioner has claimed infringement of right to privacy. Questions the fact that right to Privacy violation is being heard as a PIL.
    • A person may use her Aadhaar for obtaining SIM, opening bank account and getting PDS. Her telecom company will not have details of the bank/PDS. Similarly, her bank will not have info on her telecom and PDS. UIDAI won’t have any of the three details.
    • There’s no possibility of surveillance even at the level of RE.
    • Explains development of social security number in the US. Cites a congressional report.
    • Says SSN is a quasi universal personal identification number and is used for a variety of purposes such as identifying convicted criminals, obtaining a loan or insurance, etc.
    • Says individuals in the US can be denied benefits if they do not produce SSN.
    • Firing of an employee for refusal to produce her SSN was not seen as a violation of privacy by a US court.
    • Aadhaar act provides adequate safety to identity and authentication records. Cites section 33 (disclosure of information in certain cases) and says that the decision made under this section is reviewed by an oversight committee as provided in the proviso.
    • Says there is more oversight than what is provided in the telegraph act. Aadhaar Act exceeds safeguards laid down in the PUCL case.
  • Bench rises for lunch. Mr. Hossain says that he will take another 20-25 minutes to wrap up his arguments.
  • Second half.
  • Zoheb Hossain continues his arguments for UIDAI and the state of Maharashtra. His next contention is on national security.
    • Cites various other statutory provisions including CrPC and IT Act that provide for reasonable search and seizure and how they have been challenged earlier and have passed constitutional muster.
    • Next argument on Section 33(2) and the point petitioners made about the phrase ‘national security’ being undefined and vague.
    • Reading a House of Lords English decision that read in a national security exception to natural justice even when the Statute did not provide for that exception.
    • Says a party cannot expect strict adherance to the principles of natural justice during times of emergency.
    • Next refers to challenge to Section 47 of the Act on the ground that the aggrieved individual party is not heard but that only UIDAI can be heard or can complain.
    • A complaint can be filed to UIDAI therefore a person is not left remedy-less.
    • Justifies that its an inherently technical matter. And that there are several such laws where only authority can register a complaint.
    • Similar provision under the Industrial Disputes Act has been upheld. 2014 9 SCC 772 for example.
    • Here individual has remedy to call up the grievance redressal mechanism (1947).
    • UIDAI may also authorise that very person who is affected to register a complaint. No bar in Section 47.
    • There are provisions under the IT act for offences such as Identity theft, violation of privacy etc. 66C, 66D and 72A of IT Act enough safeguard with respect to actors outside CIDR. Aadhaar Act has safeguards for CIDR.
    • Theme of substantive equality runs through every measure including 139AA, PMLA Rules etc. Socio economic justice and furthering equality and dignity. Word distribute in DPSP 39 (b) has received liberal interpretation.
    • Revenue leakage control is in furtherance of such a measure for redistributive justice.
    • Next argument that Zoheb Hossain repels is the compelled speech element.
    • Cites Puttaswamy judgement and says that rights can be curbed in the interest of prevention of tax evasion, curbing black money and prevention of money laundering.
    • Presents judgments to show how not all transactions have a speech element and Aadhaar PAN linking have no speech element.
    • Aadhaar act and Income tax act are standalone acts and it cannot be said that parliament in it’s wisdom cannot make Aadhaar mandatory by way of an amendment.
    • 139AA and conflict with Aadhaar act that issue has attained finality in Binoy Viswam. If the objects of the two statutes are different then they are said to run parallelly and not intersect. There’s no conflict.
    • Also repels the contention that all scams have been done at the top whereas 139AA is no cure. Argues not all vices have to be cured with one measure.
    • Argument how 139AA helps uncovering the the people behind companies as well. Deduplicating DINs.
      • On why only individual tax payers are supposed to link Aadhaar with PAN,
      • Says that the rule of equality doesn’t mean that the state has to strike at all evils at the same time.
      • Having Aadhaar for individuals also cures the evil vis-a-vis companies. Companies and individuals are treated differently in the income tax Act. That cannot be called unreasonable classification.
      • Section 165 of companies Act allows a person to be the director of twenty companies. If Aadhaar is linked with PAN, it can be checked whether a genuine person is the director of more than one company. The genuineness of the company can also be verified.
      • Problem of dummy directors and fake companies will be solved by linking Aadhaar with PAN.
    • Rs. 33000 crore hitherto undisclosed income has been caught because of Aadhaar PAN linking because it was found people who were giving Form 16 (claiming to not own PAN) and Aadhaar were all found to have PAN.
    • Then answers the argument of conflict between Aadhaar Act and RTI Act and says beneficiaries list need not include Aadhaar number.
  • Zoheb Hossain concludes.
  • Attorney General comes back for his second innings. Wants to cover Money Bill and Lokniti arguments.
    • Reads that the Act is in pith and substance a Money Bill.
    • The term “targeted delivery of subsidies” contemplates expenditure of funds. The expenditure has to go into thousands of crores from the consolidated fund of India. This itself brings it into the ambit of money bill under Article 110 of the Constitution.
    • Even though the law has ancillary provisions, the main objective of the Act is delivery of services and benefits.
    • Any law will have ancilliary provisions such as appeal, revision, etc.
    • As long as each provision is directed at making the law complete, such a provision will not fall outside article 110.
    • Reads out Section 7.
    • Not a single provision in the Act is unrelated to Section 7 i.e. targeted delivery of benefits etc flowing out of the consolidated fund.
  • Justice DY Chandrachud: One area of concern is Section 57. It snaps the link with consolidated fund of India.
  • Attorney General: For all these years, there was a lot of leakage and revenue loss. There has to be some method to prevent it. Therefore we have to bring into existence the UIDAI. Section 57 merely allows the existing infrastructure to be used for other purposes as long as they are also legitimate. So it is just an ancilliary provision along with the creation of the authority.
  • Justice DY Chandrachud persists. How does body corporate or person be tenable under a Money Bill?
  • Attorney General: contract may also have a fundamental relationship with consolidated fund. Your Lordships can rule on this matter only if a contract is before you. We may not know today what color or aspect the contract under Section 57 would take. Cannot be a general challenge to Section 57.
  • Justice DY Chandrachud is not so sure.
  • Attorney General: Reads article 112 and 118 is read and Article 122.
  • Justice Sikri: there’s no distribution of benefits and subsidies under section 57.
  • Chief Justice of India and Justice DY Chandrachud: Word “only” if it contains.
  • Attorney General gives a spin on the word “only” to say provisions dealing with a to g can only be a money bill. Reads out Article 110 of the Constitution. Says Section 57 will be saved by Article 110(1)(g).
  • Justice DY Chandrachud smilingly says that would be rewriting the Constitution.
  • Laughter all round.
  • Bench rises for the day.
  • Attorney General will conclude tomorrow afternoon.
2018-05-03T14:35:52+00:00 May 2nd, 2018|Aadhaar|0 Comments

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