When the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, assembled after Holi Break for Day 14 of the Aadhaar hearing, Senior Advocate Arvind Datar began his submission by asking the Court to consider extending the deadline for linking to avoid a fait accompli. The present deadline is March 31, 2018. Senior Advocate Shyam Divan also added that the Supreme Court’s interim order also says that the arrangement is to last till the conclusion of the case. However, Attorney General KK Venugopal asked the Court to consider the question in the last week of March.
Below are the highlights from Arvind Datar’s submissions on Day 14 of the Aadhaar Hearing:
Main Arguments to be advanced by Arvind Datar:
- Challenge to Linking Bank Accounts to Aadhaar as per Rule 9 of Prevention of Money-laundering Act, 2002 (PMLA)
- Aadhaar Act, 2016 could not have been a money bill. Rule 9 violates Article 14. And in the alternative, if the Aadhaar project is upheld, it can’t go beyond subsidies.
- The Aadhaar/PAN judgment should be revisited in light of the privacy judgment.
- All State action before the Aadhaar Act, 2016 cannot be saved. There has been a continuous and flagrant violation of this Court’s orders, which should not be condoned.
Challenge to Linking Bank Accounts to Aadhaar as per Rule 9 of Prevention of Money-laundering Act, 2002 (PMLA):
- There is a Master Direction, that provides for customer identification procedures. The Master Circular covers all issues with respect to bank accounts. The impugned rules give contradictory directions (Aadhaar linking).
- Under the master circular, there exist provisions for due diligence both at the time of opening the account and subsequently. Suspicious transactions are red flagged and investigated.
- There is a provision of the master circular that does not require multiple proofs of ID. The customer can submit one of six possible IDs. This conflicts with the Rules, which only allows Aadhaar.
- The due diligence requirements under the circular, which specify the kinds of suspicious situations under which monitoring of accounts can be done.
- The Circular completely covers the field. The Circular says that you can open an account with one of six IDs. The core question is that if the Master Circular gives you a choice of six IDs, can Aadhaar then be made the only mandatory ID under separate rules.
- Aadhaar and PAN or Form 60 are necessary to be provided for bank accounts.
- Aadhaar is only required to establish the identity of the individuals not the companies. You cannot ask for Aadhaar of the individuals in the company.
- The impunged rules say that if the Aadhaar number is not provided then the accounts will stop operating. This is in violation of SC order which made Aadhaar voluntary and limited to only specific schemes. It also violates Article 300A as it deprives a person of his property.
- Chandrachud, J: They are not forfeiting the property. The amount in the account will not get forfeited.
- Arvind Datar: They are depriving me of the property- deprivation maybe temporary or permanent.
- Even if Aadhaar Act is assumed valid, the enrolment form says that Aadhaar is free and voluntary. But now Aadhaar has been made mandatory for everything.
- Aadhaar is entitlement. I am entitled to passport. I may or may not obtain a passport.
- Law recognises two categories of people- who want an Aadhaar and who do not want an Aadhaar. There’s a choice. But not so in case of PMLA rules. A person runs a risk of getting his account closed.
- Chandrachud, J: The disability to be able to operate bank accounts doesn’t occur from Aadhaar Act. It does in case of PMLA rules.
- Arvind Datar: Aadhaar is supposed to be ‘some kind of national detergent’ which will get rid of the fake PAN cards and fake bank accounts. You can’t make a group as suspects.
- CJI: You’re an account holder and have a status. The statute wants you to establish your identity. (Asks if the argument here is that in light of existing KYC identification systems, we do not need another.)
- Arvind Datar: There is no reason why 1 billion people are being asked to link their accounts to Aadhaar. There must be some purpose behind it. Any rule made must have a nexus with the Act. As far as rule 9 regarding Aadhaar is concerned, it has no nexus with the Act.
- It is not the intention of Government of India that every transaction from every account should be reported. It is only in connection with the money laundering that the Act has nexus with accounts.
The bench will continue hearing the submissions of Senior Advocate Arvind Datar tomorrow who has told the Court that he will finish his arguments by Lunch tomorrow.
Source: twitter.com/gautambhatia88 and twitter.com/SFLCin