On Day 15 of the Aadhaar hearings, senior counsel Arvind Datar concluded his arguments for the petitioners, and senior counsel and former minister P Chidambaram commenced his. The main arguments revolved around Aadhaar as a money bill. A range of other issues were also raised, including the validity of Sections 57 and 7 of the Aadhaar Act, an excessive delegation under the Act and that the ‘foolproof’ Aadhaar-PAN linkage could be circumvented merely by entering 12 zeros in the Income Tax return forms.
The Court also passed interim orders allowing alternate identifications such as driving license, ration cards, etc., for registration for NEET and other entrance examinations. In addition, the Court said that it would address the issue of extending the 31 March deadline on a conclusion of P Chidambaram’s arguments.
Consent for Aadhaar is not ‘free’
Datar started his arguments for the day on the issue of consent, arguing that asking people to either consent or risk having their bank accounts blocked, was not consent at all. In such a situation, there could neither be ‘consent’ nor ‘free consent’ as per the Indian Contract Act. This is more so when one party has a position of dominance over the other. This, in effect, vitiates the ‘consent’ taken from the people for Aadhaar.
Private party use of Aadhaar removes money bill nexus
Commencing the argument on the Aadhaar Act as a money bill, it was argued that the use of Aadhaar was bound by its Statement of Objects, which refers to the ‘delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India’. If the Aadhaar Act is upheld, then the uses to which it can be put should not extend beyond that outlined in these objects.
The arguments then returned to Section 57 of the Aadhaar Act, the section which permits anyone, including private parties to use Aadhaar, and which has widely been used as the basis for making Aadhaar mandatory for various purposes. The Bench, here, observed that another key issue was that the minute private parties were involved, the Act’s nexus with a money bill is lost.
Rajya Sabha recommendations for deletion of Section 57
The Rajya Sabha, it must be remembered, had in fact recommended the deletion of this section at the time of deliberating the Aadhaar Bill in parliament. The rejection of these recommendations was also pointed to by the petitioners. In particular, the fact that had Aadhaar not been a money bill, then the Lok Sabha would have been forced to pay heed to the Rajya Sabha recommendations, including the deletion of Section 57 as well as to provide an opt-out clause.
Aadhaar as a universal identifier like the SSN
To bring out the issue with the near-universal use of Aadhaar, the adoption and subsequent rejection of the Social Security Number (SSN) as a de facto standard universal identifier in the US was also raised. A US governmental report on ‘Records, Computers and the Rights of Citizens’, which had criticised the use of SSN as such was quoted. It is important to note that this report was used in debates that happened in the US Senate back in 1974. This report had also said that an individual will be entitled to refuse to show his SSN number, and it would be unlawful for any federal agency to deny the provision of any benefit the individual is entitled to for this reason.
This was compared to the use of Aadhaar today. It was argued that today, it was not possible for an individual to survive without Aadhaar, and it was needed from ‘birth to death’. It was further argued that worldwide, there was a turn towards limiting the use of data while here, the opposite was happening.
In view of this, it was argued that Section 57 allowing the use of Aadhaar for ‘any purpose’ could not be interpreted to mean use for ‘all purposes’. The Bench, here, also questioned if there was any compelling state interest in authorising private parties to mandate Aadhaar. Further, previous arguments on Section 57 as an excessive delegation of essential functions were reiterated.
Mandating Aadhaar for receipt of subsidies
The petitioners then turned to Section 7 of the Aadhaar Act, which makes Aadhaar mandatory for receiving subsidies. Under this, it was argued, any one of 18 ID proofs, including ration cards, could be shown to obtain Aadhaar. Once obtained, however, every one of these ID proofs were in effect invalidated.
It was argued that the livelihood of the people could not be made dependent on a machine that was probabilistic and inherently faulty. The Supreme Court’s judgment in the Swaraj Abhiyan case, which permitted alternative identifications other than ration cards for receiving entitlements under the National Food Security Act in drought-affected areas, was quoted in this context.
Aadhaar-PAN can be circumvented by entering 12 Zeros
Turning to the Aadhaar-PAN judgment, the petitioners argued that an important argument of the State, in that case, was that the Aadhaar PAN linkage was a foolproof method of ensuring that there were no fake PANs. Yet, an example of a person was cited who simply entered 12 zeros in the required column, and his income tax returns were accepted, processed, and refund made.
A strict interpretation of ‘money bill’
On completion of Datar’s arguments, senior counsel P Chidambaram commenced his arguments. His arguments dealt extensively with the classification of the Aadhaar Bill as a ‘money bill’. This term is defined under Article 110 of the Constitution, as a bill that deals ‘only’ with certain issues, such as regarding the imposition of tax or the borrowing of money by the Indian government, or the appropriation of money from the Consolidated Fund of India.
It was argued that the term ‘only’ be strictly interpreted. This is in view of the fact that a money bill is a very special kind of bill, one which leads to the removal of the powers of the Rajya Sabha and the President in the passing of the legislation. This, it was argued, required very careful and strict interpretation to classify a given bill as a money bill.
Arguments for the petitioners will continue on Tuesday, 13 March.
Read our past coverage of the on-going Aadhaar Supreme court hearing:
The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.