Defender of your Digital Freedom

All Posts | Jan 03,2020

Our Statement on Delhi High Court’s Dismissal of the Public Interest Litigation Challenging Internet Shutdown in Delhi

Our Statement on Delhi High Court’s Dismissal of the Public Interest Litigation Challenging Internet Shutdown in Delhi

On 24.12.2019, the Delhi High Court refused to exercise its powers under Article 226 of the Constitution of India in passing any order while dismissing the petition filed by SFLC.IN in public interest challenging the Internet shutdown order issued by the DCP, Special Cell, New Delhi on 19.12.2019. Delhi witnessed its first ever Internet shutdown on the 19th of December, 2019 through the aforementioned order which was imposed due to the protests againsts the Citizenship Amendment Act which were conducted in specific areas within Delhi alongside other similar protests in the country.

SFLC.IN filed Writ Petition (Civil) No. 13853/2019 in public interest in the Delhi High Court challenging the order above mentioned seeking an order of the court setting aside the impugned order of the DCP, Special Cell, New Delhi. SFLC.IN also sought directions to the DCP not to issue further Internet Shutdowns orders as the DCP did not have any authority to do so as per the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (“2017 rules”) which was enacted specifically for the purpose of regulating telecom service suspensions in India. Through the petition, SFLC.IN also sought directions to the respondents to impose telecom service suspensions only as per the provisions of the 2017 rules and only when there is an immediate threat to public safety and impose them after notifying the public about an intended suspension.

Adv. Jayant Mehta assisted by Adv. Bhuvan Mishra and Adv. Basil Ajith appeared and argued for SFLC.IN basing the petition on the grounds that the Internet shutdown imposed in Delhi flouted the provisions of the 2017 rules and that arbitrary shutdown of Internet services adversely affects the citizens, affecting their fundamental rights to freedom of speech and life. The economic impact of such shutdowns were also pointed out. A similar petition was disposed of by the Guwahati High Court which ordered Internet services to be restored in the state of Assam as state of affairs had returned to normalcy. The counsel for SFLC.IN also produced and relied on the said order of the Gauhati High Court. However, the Delhi High Court refused to provide any recourse in the matter citing the temporary nature of the suspension order in Delhi.

Interestingly, the Delhi High Court did not go into the merits of the matter concerning the legality of the order passed by the DCP sans any authority. Nor did the Court seek an undertaking from the respondents that Internet shutdowns will be imposed only as per the 2017 rules. The Court refrained from providing any proactive remedy to curb arbitrary Internet shutdowns.

SFLC.IN considers the order of the Delhi High Court legally untenable and will explore alternative remedies to protect the rights of citizens in this matter. Internet shutdowns in India (which have reached the mark of 378 shutdowns within the period from 2012 to present) are in a lot of cases imposed illegally under Section 144 of the Criminal Procedure Code, 1973 rather than the 2017 rules. Even when orders are issued under the 2017 Rules, these are often in clear violation of the procedures prescribed. Internet shutdowns affect the society adversely and are blatant violations of the fundaments rights to freedom of speech and expression, and the right to conduct trade and the right to life under Articles 19 and 21 of the Constitution of India. Also, it is a gross violation of India’s obligations under International Law.

All Posts | Jul 26,2018

Income Tax Returns filing sans Aadhaar

Aadhaar Free Income Tax Return Filing; Courtesy Delhi High Court

As July 31, 2018, the deadline to file Income Tax returns for the Assessment Year 2018 – 2019, comes closer, the complexities and jargon behind whether or not Aadhaar Registration/ Enrollment ID (Aadhaar Number) has to be furnished/ linked become more and more relevant by the minute. Thankfully for us, the Delhi High Court has come to save the day.

The Delhi High Court, on Tuesday in the case of Shreyasen & Anr. v. Union of India[fn]W.P. (C) 7444/2018, C.M. APPL. No. 28499/2018[/fn] cleared all the hullabaloo regarding the “linking” and “furnishing” of one’s Aadhaar number which was previously mandated to file income tax returns.

In its order, the Delhi High Court directed the Central Board of Direct Taxes (CBDT) to, at least till the period of March 31, 2019, either create a platform by amending the digital form or substituting the same to properly enable “opt out” from the mandatory requirement of having to furnish Aadhaar number.

This effectively means that no Aadhaar Number, previously mandated (either the 12-digit Aadhaar Card registration number or the 28-digit Aadhaar Card Enrollment ID), will be required to file income tax returns.

Progression of the Issue

Section 139AA(1) of the Income-Tax Act, 1961 as inserted by the Finance Act, 2017[fn]http://pib.nic.in/newsite/PrintRelease.aspx?relid=160538[/fn] is what gave teeth to the previously ongoing mandatory quoting of Aadhaar number for filing income tax returns. The constitutionality of the same was upheld by the Supreme Court of India in the case of Binoy Viswam v. Union of India & Ors.[fn]W.P. (C) 247/2017[/fn]

However, only a partial stay was granted by the Supreme Court in Binoy Viswam v. Union of India & Ors. for the purposes of Section 139AA(2) which talked about how every person who had been allotted PAN as on the 1st day of July, 2017, and who was eligible to obtain Aadhaar, would have to intimate their Aadhaar on or before a date to be notified by the Central Government failing which the PAN allotted to the person would be deemed to be invalid. However, the Supreme Court also stated that PAN cards of assessees, those who were not Aadhaar card holders, would not be invalidated.

Meanwhile, an order was passed in the Justice K.S. Puttaswamy v. Union of India case (commonly known as the Right to Privacy case)(“Puttaswamy case”)[fn]W.P. (C) 494/2012[/fn] which put a stay on the linkage of Aadhaar Number with various services other than those mentioned in Section 7 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 and filing of income tax returns under Section 139AA of the Income-tax Act, 1961 till the final disposal of the matter.[fn]https://www.supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Order_15-Dec-2017.pdf.[/fn]

Vide its circular dated July 31, 2017, which was the initial deadline to submit Aadhaar, the CBDT extended the deadline to August 31, 2017[fn] https://www.incometaxindia.gov.in/Lists/Latest News/Attachments/181/Order-under-section-119-of-the-Income-tax-Act-1961-31-07-2017.pdf[/fn] which was further extended to December 31, 2017.[fn]https://www.incometaxindia.gov.in/Lists/Press%20Releases/Attachments/676/Press-Release-CBDT-extends-date-Linking-Aadhaar-with-PAN-8-12-2017.pdf.[/fn] On March 27, 2018, the CBDT extended the deadline again to June 30, 2018, citing that the same had been done on account of "consideration of the matter".[fn]https://www.incometaxindia.gov.in/Lists/Press%20Releases/Attachments/698/Press-Release-CBDT-extends-date%20for-Linking-of-Aadhaar-with-PAN-27-03-2018.pdf[/fn]

On March 31, 2018, the Ministry of Finance issued a circular stating that the date of submission of Aadhaar Number was extended till the time the pronouncement of the final judgement of the Puttaswamy case[fn]http://egazette.nic.in/WriteReadData/2018/184377.pdf[/fn] and finally on June 30, 2018, another notification by the CBDT, extended the deadline for linking PAN with Aadhaar Number was extended to March 31, 2019.[fn]https://www.incometaxindia.gov.in/news/cbdt-order-regarding-linking-of-pan-with-aadhaar-while-filing-of-itrs-30-06-2018.pdf[/fn]

This led to a conflicting situation where on one hand, the CBDT had stated that linking was to be done only by March 31, 2019, but at the same time income tax returns could not be filed without quoting Aadhaar number. The differentiation lay in the fine print i.e. the difference between “quoting” one’s Aadhaar number versus “linking” ones Aadhaar number.

Numerous litigations arose across various High Courts of the country including the Delhi High Court[fn]W.P. (C) 3212/2018[/fn], Punjab and Haryana High Court[fn]WP 7672/2018[/fn], Madras High Court[fn]W.P. 27826/2017[/fn], and the Kerala High Court[fn]WP(C). No. 26033/2017(D)[/fn] all of which allowed the petitioners specifically, to file their income tax returns without “quoting” their Aadhaar numbers which the Income Tax department had said was mandatory and was different from “linking” the deadline for which had been extended.

In this backdrop, the only solution that an individual could take recourse to non-quoting of their Aadhaar number was filing a suit and praying for the same outcome. The Shreyasen & Anr. v. Union of Indiacase is however, different in the sense that it not only orders the CBDT to create a platform by amending the digital form or substituting the same to properly enable “opt out” from the mandatory requirement of having to furnish Aadhaar number but more importantly it does not restrict its scope to the petitioners alone.

Awaiting CBDT Compliance

In what is probably a staged rollout, there have been instances wherein some users are already being able to file their income tax returns online without quoting their Aadhaar Number.

With the deadline to file income tax returns coming extremely close, SFLC.in is closely monitoring CBDT’s strict compliance with the Delhi High Court order; with sources confirming that the same is to take place for all users in the next 24 hours.

Please do note that at the time of publication of this blog post, quoting of Aadhaar Number is still mandated in our sample account hereunder.


All Posts | Sep 27,2017

Notable technology and rights related litigations

Below is a compilation of some notable technology and rights related litigations from India, on-going and concluded. This list includes matters filed before the Indian Supreme Court as well as various High Courts, and covers the broad topics of Privacy, Aadhaar, Intermediary Liability, Free Speech, and Right to be Forgotten.

Image credit: Legaleagle86 at en.wikipedia [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

All Posts | Jan 05,2017

Aadhaar on trial: The litigations around Aadhaar

The development of Aadhaar over the years has opened a Pandora’s box of litigations against its various claims and processes that range on the spectrum from privacy rights to compulsory carrying of Aadhaar cards by drivers. Prior to the drafting and operation of the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 (hereinafter Aadhaar Act), the Aadhaar scheme was challenged by many petitions, tagged together under the case of K.S. Puttaswamy & Ors. v. Union of India & Ors. However, upon the notification of the Act and various Regulations therewith, fresh petitions have been filed challenging the Aadhaar Act and the Rules in S.G. Vombatkere and Anr. v. Union of India & Ors. Apart from these, there have been a multitude of petitions filed around the Aadhaar scheme and its usage by various state agencies in several forums across the country.

(A detailed time-line of the Aadhaar scheme can be accessed here)

Initial petitions: The pending case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors.(W.P.(C) 494/2012), was the first in the series of cases challenging the Aadhaar scheme. The case, along with 15 other matters tagged along with it,is currently pending before the Apex Court, after being referred to the Constitution Bench in 2015. The latest orders issued in this case on 11th August and 15th October, 2015 effectively held that until the issues in the pending case can be decided with finality by the Supreme Court, the use of Aadhaar card is not only purely voluntary, but can only be used on this voluntary basis for six Government schemes i.e. Public Distribution System, LPG, Mahatma Gandhi National Rural Employment Guarantee Act, Employees’ Providend Fund Organization, Pension scheme, and Prime Minister’s Jan Dhan Yojna. Moreover, it also mentioned that no one should be denied any services or benefits that they are rightfully entitled to for the lack of an Aadhaar card.

(Our notes from hearings of this case can be accessed here)

Contempt: In the year that followed the above mentioned orders, there have been innumerable news reports of activities that would tantamount to contempt of these orders. We have attempted to record the violations of these orders where Government agencies and private bodies have not only used Aadhaar for purposes ranging from applying for Padma Shri awards to filing Income Tax appeals, but have also made it mandatory in many cases. A non exhaustive catalog created by us from news reports on these violations can be accessed here. Owing to the massive scale of these incidents, contempt petitions were recently filed in the Supreme Court, in the case of Mathew Thomas v. K.D. Tripathi and Anr. (Contempt Petition(C) 444/2016). Col. Mathew Thomas is also one of the petitioners in the cases tagged under the above-mentioned K.S. Puttaswamy v. Union of India. As these claims arise from the orders given in K.S. Puttaswamy v. Union of India, the Supreme court has connected the contempt proceedings to it and are thereby, pending further listing and hearing.

Scholarship row: The Ministry of Minority Affairs, through a letter dated 14th July, 2016 had made Aadhaar a mandatory requirement to apply for the Pre-Matric, Post Matric, and Merit Scholarship schemes for the years 2016-2017, along with making the registration possible solely through an online platform. This is a scheme that provides scholarships to students of recognized minority communities for high school education on the basis of certain criteria. This order was challenged before the Supreme Court as well as the Delhi High Court in two separate petitions.

  • Supreme Court: In the case of All Bengal Minority Students Council and Anr. v. Union of India and Anr. (W.P.(C) 686/2016), the Supreme Court drew attention to the last order by the five Judge Bench on 15th October, 2015 in the case of K.S. Puttaswamy v. Union of India, where it made the use of Aadhaar card purely voluntary, and ordered to stay the implementation of the letters issued by the Ministry of Minority Affairs that made Aadhaar compulsory for applying for Pre matric, Post matric and Merit based scholarships. In this order dated 14th September, 2016, a two Judge Bench also asked the Ministry of Electronics and Information Technology to remove the mandatory requirement for Aadhaar from the National Scholarship Portal as well.

  • Delhi High Court: In a petition filed by the Nasimuddin Educational and Charitable Trust (W.P(C) 7931/2016) that challenged the same orders by the Ministry of Minority Affairs, the Delhi High Court acknowledged the order passed by the Supreme Court on the issue in the above mentioned case. However, it recognized that the Apex Court had not provided any insight on the mandatory online application for the scholarships. Therefore, on the exclusionary nature of the application procedure by limiting it to only online applications, the Delhi High Court has agreed to hear the case on 7th December, 2016 subsequent to the filing of a response by the Union of India and other respondents. Although the Delhi High Court website states that this case was disposed off on 7th December, 2016, details of any order or judgment are unavailable on their online portal.

Mandatory for PDS: It was reported that upon Aadhaar being made mandatory by Karnataka State Government on 29th July, 2016 to avail benefits of Public Distribution System (PDS), a petition was filed challenging it. The High Court has subsequently as per the reports issued notice to the State and district governments in this regard.

(We have been unable to locate and procure the official records/ documents of the case, and would appreciate assistance/information regarding them)

Need to carry Aadhaar card while driving: In a press release, reportedly issued by the Cyberabad Police Commissionerate on 23rd July, it was said that Aadhaar card has been made mandatory to be carried alongside other relevant documents for people driving any vehicle in Telangana. Challenging this compulsion, the Hyderabad High Court in an order reported to be issued on 18th October, 2016 has asked the Police commissioner to justify the legal basis for mandating carrying of Aadhaar card for all drivers.

(We have been unable to locate and procure the official records/ documents of the case, and would appreciate assistance/information regarding them)

Challenge to Aadhaar Act: The Aadhaar Act was proposed in the Lok Sabha by the Government as a money Bill as the core component of the Act was sought to be the distribution and dispersal of subsidies and benefits from the Consolidated Fund of India. It was passed in the Parliament on 1st March, 2016. (Our report on the parliamentary proceedings and discussions on the Aadhaar Bill can be accessed here)

The challenges to this Act have been two fold, with one petition challenging the passing of this Bill as a money Bill, and the second one alleging that the Act and the subsequent regulations passed therein are unconstitutional. A brief synopsis of these two petitions pending in the Supreme Court is as follows:

  • Money Bill challenge: Jairam Ramesh, the former Union Rural Development Minister filed a public interest litigation in the Supreme Court challenging the passing of the Aadhaar Act as a money Bill, alleging that the Bill did not qualify for an action under Article 110 of the Constitution that provided criteria for categorizing Bills as money Bills. In the hearing that took place on 10th May, 2016, it was argued in the case of Jairam Ramesh v. Union of India (W.P.(C) 231/2016) that the Aadhaar Act did not comprise solely of management of funds of the Consolidated Fund of India, instead it was only a part of the Bill that included amongst other things, the roles and responsibilities of enrollment agencies, requesting entities, and authentication agencies, and the information to be given to users. The Attorney General argued that as the determination of a Bill as money Bill is at the discretion of the Lok Sabha Speaker, it was not open for judicial review by the Supreme Court. The case is next scheduled for hearing on 13th February, 2017.

  • Challenge to the Aadhaar Act: A fresh petition, S.G. Vombatkere & Anr. v. Union of India & Ors. (W.P.(C) 797/2016) challenging the Aadhaar Act and the subsequent Rules and Regulations released therein was listed in the Supreme court on 21st October, 2016. However, as the petition was listed before a bench that included Justice L.N. Rao, who had previously represented the Union of India as the Additional Solicitor General in the earlier Aadhaar petitions, the Supreme Court ordered the matter to be listed before a different bench to eliminate any conflict of interest. Further, at a subsequent hearing that took place on 28th October, 2016, notice was issued to the Union of India in this case by the Apex Court. On 5th January, 2017, this case was mentioned in front of CJI Khehar, and Justices N V Ramana, and DY Chandrachud, to be heard on an urgent basis due to the privacy concerns involved and the collection of biometric data by private entities as well. However, the Supreme Court refused to expedite the process and reportedly said, “We are not inclined to give immediate hearing as there are limited resources but biometric data collection by private agencies is not a great idea.”

Watch this space for updates on these cases/other cases around the Aadhaar scheme.

Image Credit: Wikimedia Commons CC-BY-SA 4.0 International