Asheeta RegidiSep 25, 2018 18:52:15 IST
Editor's Note: This copy was published on 3 May, 2018. It is being republished in light of the Supreme Court's verdict on the constitutionality of Aadhaar likely being pronounced tomorrow.
On Day 35 of the Aadhaar hearings, advocate Zoheb Hossain concluded his arguments on the issue of the furtherance of socio-economic rights via Aadhaar. He also discussed the issues of disclosure of information in the interest of national security, the filing of complaints by the Unique Identification Authority of India (UIDAI) only under the Aadhaar Act, and on the Aadhaar-PAN linkages being applicable to individuals only and not to corporates. The Attorney General then continued his arguments on the money bill issue, arguing that Aadhaar was, at its core, a money bill and that Section 57 was just an ancillary provision.
Aadhaar advances socio-economic rights
Advocate Zoheb Hossain continued his arguments on behalf of the UIDAI and the State of Maharashtra, arguing on the issue of advancement of socio-economic rights and their harmonisation with civil and political rights. Aadhaar, he argued, was a project that ensures people’s socio-economic rights. He further pointed to the Justice Wadhwa Committee Report on the public distribution system.
Next, he pointed to the case of D.K. Trivedi vs State of Gujarat, in which the Supreme Court observed that the validity of a statute conferring discretionary powers on the executive or an administrative authority, could not be judged on the assumption that the said authority would act in an arbitrary manner in the exercise of that discretion.
He further made reference to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), and the reference made to them in previous judgments of the Supreme Court like in Unni Krishnan vs State of Andhra Pradesh. He argued, based on the ICCPR, that all human rights are equally important, indivisible and interconnected. Socio-economic rights are thus as important as civil and political rights.
PIL on the right to privacy?
In order to judge the proportionality of restrictions imposed on privacy, he argued that their reasonableness would have to be considered from the perspective of the general public and not that of an individual. At this juncture, he also questioned how a public interest litigation could be filed for the violation of the right to privacy, when privacy is essentially a personal right, and none of the petitioners were alleging a violation of their privacy.
In furtherance of this, he cited a US congressional report on the development of the Social Security Number (SSN), which describes it as a quasi-universal personal identification number, used for a variety of purposes such as identifying convicted criminals, obtaining a loan or insurance, etc. He argued that individuals in the US could be denied benefits if they fail to produce their SSN. As an example, he cited a US case where the firing of an employee for failing to produce her SSN was not seen as a violation of her privacy.
Disclosure of information for national security
Next, arguing that there were adequate safeguards for records under the Aadhaar Act, he cited Section 33(2) of the Aadhaar Act, which allows the disclosure of information in the interest of national security. He pointed to the safeguard under the proviso of this section, which requires every such direction under it to be reviewed by an Oversight Committee. He argued that the Aadhaar Act prescribes more oversight than even that prescribed under the People's Union for Civil Liberties (PUCL) case on telephone tapping. On the issue of national security, he further argued that a party could not expect strict adherence to the principles of natural justice during times of emergency.
Filing of complaints by the UIDAI only
He further argued on the challenge to Section 47 of the Aadhaar Act, which prevents the people from filing a case under the Act. He argued that since the person could file a complaint before the UIDAI through its grievance redressal system, he wouldn’t be left remedy-less. He argued that it was best left to the UIDAI to file complaints since they have a better understanding of the highly technical nature of the Aadhaar system. He also pointed to the judgment of the Supreme Court in State of NCT v. Delhi,, where a similar provision under the Mines and Minerals (Development and Regulation) Act was discussed.
Further, he argued that the UIDAI may authorize a person to file a complaint if they felt that it was genuine since there was no bar to do this under the Aadhaar Act. Additionally, there were remedies available under the Information Technology Act, such as for identity theft and the violation of privacy, for actors outside the CIDR. For the CIDR, there were adequate provisions under the Aadhaar Act.
Promoting redistributive justice via Aadhaar-PAN
Next, he argued that the purpose of the Aadhaar Act as well as Section 139AA of the Income Tax Act on Aadhaar-PAN linking is to promote redistributive justice and ensure substantive equality, along with furthering the dignity of the individual. He argued that the term ‘distribute’ under the Directive Principle of State Policy under Article 39(b) of the Constitution, includes revenue leakage control in furtherance of distributive justice. He also quoted the Puttaswamy judgment, arguing that rights of an individual could be curbed in the interest of prevention of tax evasion, curbing black money and prevention of money laundering.
He further argued that the Aadhaar Act and the Income Tax Act were stand-alone acts, and it cannot be said that the Parliament cannot, in the exercise of its legislative wisdom, make Aadhaar mandatory by way of an amendment. This argument, further, had already been decided by the Supreme Court in the Binoy Viswam case. The objects of the two statutes, he argued, are different, and they could run parallel to each other, with no intersection and thus, no conflict.
Aadhaar-PAN can resolve dummy directors and fake companies
Next, turning to the issue of why only individuals had been asked to link their Aadhaar with PAN, he argued that the rule for equality did not mean that the State has to strike all evils at the same time. Companies and individuals, he argued, were treated differently under the Income Tax Rules.
Further, the linking for individuals will also cure the evils vis-à-vis companies. For instance, under the Companies Act, a person can be a director for only 20 companies at a given time. The linking of Aadhaar with PAN, he argued, would allow the verification of whether a genuine person is the director of the companies. This could thus enable the deduplication of Director Identification Numbers. The genuineness of the companies can also be verified this way. With this, the counsel concluded his arguments.
Aadhaar is at its core a money bill
The Attorney General then commenced his arguments on the issue of money bill. He argued that Aadhaar was, in pith and substance, a money bill, and ancillary provisions in relation to appeal, revision, etc., which are needed to make the Act complete, do not fall outside the ambit of Article 110 of the Constitution (which defines a money bill). He argued that the term ‘targeted delivery of subsidies’ contemplated the expenditure of funds. This expenditure was to the tune of thousands of crores from the Consolidated Fund of India. This, he argued, in itself brought the Aadhaar Act under the ambit of a ‘money bill’ under the Constitution of India.
He argued that even though the law has ancillary provisions, the main aim of the Act was the delivery of services and benefits. He argued that Sections 7, 24 and 25 brought the Aadhaar Act under the ambit of a money bill. Not a single provision, he argued, was unnecessary or unrelated to the main purpose of the Act.
Section 57 is an ancillary provision
The Bench here pointed to Section 57, describing the allowing of body corporates and individuals to use Aadhaar as a concern with the link of the Act to the Consolidated Fund of India. This provision, they stated, did not involve the distribution of benefits and subsidies under the Aadhaar Act. To this, the Attorney General argued that the Section merely allows the existing infrastructure to be used for other purposes so long as the purposes are legitimate. Thus, this was just another ancillary provision. He further argued that the Court could judge the validity of a contract for the use of Aadhaar under this Section only if it was before them for consideration.
He further pointed to Article 110 of the Constitution of India, which defines a money bill and includes clause (g), which allows a money bill to include provisions on matters incidental to any of the matters which are the primary subject of a money bill. When the Bench pointed out that under Article 110, a money bill could ‘only’ involve the matters as listed from clauses (a) to (g), the Attorney General argued that the term ‘only’ implied that the matters listed under these clauses could only be dealt with as a money bill. The Bench, here, remarked that such an interpretation would constitute rewriting the Constitution.
The arguments will continue 3 May.
You can read our complete coverage of the Aadhaar Supreme Court case below:
The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.