The Supreme Court today continued the hearing on cases filed against linking Aadhar to PAN and making it mandatory for filing income tax returns [Binoy Viswam v. Union of India, W.P.(C) No. 247/2017 & S G Vombatkere and Anr. v. Union of India, W.P.(C) No. 277/2017 – see our coverage of arguments from day 1 here]. Mr. Shyam Divan, Senior Counsel appearing for the petitioners in the latter case, resumed his arguments from day 1, and made the following points:

  • The entire system of Aadhar is unreliable as is evident from the numerous leaks that have occurred. A letter written by the Ministry of Electronics and Information Technology confirms that the data, which the Government has been carefully guarding, has been leaked online. Mr. Divan read out a list of all the significant leaks that have taken place recently.
  • On 15th October, 2015, a Constitution Bench of the SC had directed the Union Government to follow all earlier interim orders issued by the SC starting September 2013. As these orders had made the use of Aadhar purely voluntary, the Aadhar Act can only create rights for citizens and not impose any duties. Converting a right into duty is colorable exercise of power.
  • The Preamble to the Constitution guarantees dignity of the individual and compelling people to part with their biometric data is a violation of their fundamental right to life as guaranteed by Article 21 of the Constitution. When there is a written Constitution that the citizens have given to themselves, the state, however powerful has limited power. This concept of limited government was recognized in the case of State of Madhya Pradesh vs. Thakur Bharat Singh. The Government is trying to change the notion of limited governance to an all pervasive one. Mr. Divan also mentioned that the Constitution of India is not a charter of servitude.
  • Right to life under Article 21 encompasses the right to protect one’s body from harm, which in turn includes the right to not part with one’s fingerprints and iris scans. Article 21 guarantees personal autonomy which was reinforced in the cases of Sunil Batra v. Delhi AdministrationNational Legal Services Authority v. Union of India, and Aruna Shanbaug v. Union of India. Further, it also incorporates the right of bodily integrity. Mr. Divan cited Salmond, Hobbes and Locke to elucidate the jurisprudential perspective on the same.
  • If the object of the statute is discriminatory, then the statute violates Article 14 of the Constitution. Before invoking the test of reasonable classification, it has to be checked if the object of the Act itself is discriminatory or not. Aadhar creates two classes of assessees – those who volunteer to part with their biometric data and those who do not.
  • A statutory provision that completely takes away the voluntary nature of Aadhar and compels expropriation of a person’s fingerprints and iris scans is per se violative of Article 21. Such coercion cannot be imposed on legitimate tax payers and assessees who are otherwise willing and pay income tax. There is no doctrine of eminent domain qua a person. Further, taking into consideration the “effect test”, Section 139AA is unworkable.
  • Lastly, in a digital world, the concept of “informational self determination” should be made a facet of Articles 21, 14 and 19 of the Constitution.

Mr. Divan is scheduled to conclude his arguments on Thursday, April 28, 2017.