On Day 26 of the Aadhaar Hearing, Attorney General KK Venugopal completed his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Additional Solicitor General Tushar Mehta began his arguments before the Bench.
Below are the highlights from Day 26 of the Aadhaar Hearing:
- AG: Section 59 of the Aadhaar Act, 2016 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.)
- Chandrachud, J: The first two forms did not have any reference to biometrics. It was only inserted in the third form.
- AG: 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. The state has no interest in collection of biometrics except for the benefit of the individual himself. Emphasizes that invasion is privacy. 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.
- Chandrachud, J: 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 judgments that affirmed privacy relied on the first part of Kharak Singh.
- AG completes his submissions.
- ASG Tushar Mehta:
- The challenge to section 139aa was examined by this court. Apart from right to privacy, all other aspects were considered.
- In Privacy Judgment, all nine judges have affirmed that right to privacy is not absolute.
- J. 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.
- A legislation has to pass all four tests to be valid. Three laid down in Privacy Judgment and also the test of manifest arbitrariness.
- All these tests were examined in Binoy Viswam although in the context of Article 19.
- Another test will be the test of larger public interest.
- All the demographic information that is required under Aadhaar was already being taken since 1989 under section 139a of the income tax (for obtaining PAN).
- Left hand thumb impression was also taken for people who can’t sign. Bench says there’s no collection of biometrics and there’s no authentication taking place.
- Those who have already taken PAN do not have any legitimate interest in withholding information that they have already provided for obtaining PAN.
- 1.3 lakh cases of duplicate PAN were found. Says that PAN can be misused for the purpose of tax evasion, black money , setting up shell companies etc. Aadhaar will ensure that one person has one PAN by interconnecting the PAN-aadhaar database.
- 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.
- Fake PAN cards are used to create shell companies abroad and Aadhaar can make sure that this does not happen.
- Uniqueness of pan is important. Deduplication test needs to be conducted. Demographic way of verifying de duplication is not fool proof. Hundred percent verification is possible with Aadhaar as biometrics and Iris scans will be used.
- There’s a huge gap between the no.of PAN holders and the entire tax base.
- Finance minister has described financial frauds in his Feb speech. Also our tax collection is very low in our GDP ratio. We are a largely tax non compliant country and the burden of people who evade taxes falls on honest tax paying citizens.
- 17.4 cr out of 36 cr tax payers have already linked their Aadhaar with PAN. Even transgenders are included without having to disclose their gender.
- Bhushan, J: You’ll have to prove there’s no violation of privacy. In substance Puttaswamy and Shaira bano retrospectively ratifies what was held in Binoy Viswam.
To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.
To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.
To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.