Updates on Aadhaar Final Hearing: Day 35

On day 35 of the final Aadhaar hearing, Advocate Zoheb Hossain, appearing for the State of Maharashtra and UIDAI continued his submissions. He began by handing over a bunch of international charters and covenants to the bench on harmonization of socio-economic and civil-political rights. J. Chandrachud remarked that directive principles of state policy are essential for good governance and are a guarantee of reasonableness of a law and even though they are non-justiciable, they are read into Article 21. Mr. Hossain stated that enacting a data protection law is a positive obligation of the State. Reading out excerpts from the Wadhwa Committee report on public distribution system and food security, he also mentioned that Aadhaar is a project to ensure socio economic rights of the people.

Mr. Hossain cited the case of D.K Trivedi v. State of Gujarat wherein it was held that when a statute confers discretionary powers to the executive, the validity of the statute cannot be judged by assuming that the executive will act in an arbitrary manner and abuse its power. It was also held that there is a constitutional obligation on the State to ensure socio-economic welfare of the citizens which includes prevention of leakages in public distribution systems.

Next, he cited the case of J.P Unnikrishnann v. State of Andhra Pradesh wherein the court relied on UDHR and ICCPR to read in education as a social right under Article 21. Mr. Hossain then cited a UN General Assembly resolution which said that the ideal of freedom can only be achieved if conditions are created so that everyone can enjoy socio economic and civil political rights. He also mentioned that all human rights are equally important, indivisible and interconnected. Socio-economic rights are as important as civil and political rights.

On the point of proportionality, Mr. Hossain contended that to judge proportionality, reasonableness of the measure/restrictions have to be shown from the point of view of the general public and not from the point of view of one affected party. He argued that right to privacy is an individual right which can be highly subjective or objective and the state cannot be held to be vicariously liable for its infringement. He asserted that no petitioner has claimed infringement of right to privacy and questioned the fact that a violation of privacy is being heard as a PIL.

Next. Mr. Hossain submitted that a person may use her Aadhaar for obtaining SIM, opening bank account and getting PDS. Her telecom company will not have details of the bank/PDS. Similarly, her bank will not have information of her telecom and PDS subsidy. UIDAI won't have any of the three details which proves that there is no scope of conducting mass surveillance.

Further, Mr. Hossain explained the development of social security number in the US and cited a congressional report. He stated that SSN is a quasi universal personal identification number and is used for a variety of purposes such as identifying convicted criminals, obtaining a loan or insurance, among other things. He cited a US judgment that said that firing of an employee for refusal to produce her SSN was not seen as a violation of privacy.

As regards the security of Aadhaar, Mr. Hossain stated that the Aadhaar Act provides adequate safety to identity and authentication records, following which he cited section 33 (disclosure of information in certain cases) and said that that the decision made under this section is reviewed by an oversight committee as laid down in the proviso.

With respect to national security, Mr. Hossain argued that a party cannot expect strict adherence to the principles of natural justice during times of emergency. On the petitioner’s argument that a person has no right to complain before a court of law (Section 47), Mr. Hossain contended that the purpose of such a measure is discernible under the scheme of the Act. He also stated that a complaint can be filed to UIDAI which can then take cognizance of it depending on the genuineness of the complaint, therefore a person is not left remedy-less. He further highlighted that Aadhaar is technical and it is appropriate if UIDAI is given the power to complain as they best understand the matters. He gave the example of a similar provision in the Industrial Disputes Act which was upheld by the court.

In his last argument, Mr. Hossain asserted that the purpose of Aadhaar including section 139AA of the Income Tax Act is to promote re-distributive justice and ensure substantial equality along with furthering the dignity of the individual. He quoted the Puttaswamy judgement and said that rights can be curbed in the interest of prevention of tax evasion, curbing black money and prevention of money laundering. Aadhaar Act and Income Tax Act are standalone acts and it cannot be said that Parliament in its wisdom cannot make Aadhaar mandatory by way of an amendment, he argued. Mr. Hossain pointed put that if the objects of the two statutes are different, then they are said to run parallely and not intersect. There is no conflict. On why only individual tax payers are supposed to link Aadhaar with PAN, Mr. Hossain said that the rule of equality doesn't mean that the state has to strike at all evils at the same time. He further mentioned that Aadhaar for individuals also cures the evil vis-a-vis companies. Companies and individuals are treated differently in the income tax Act. That cannot be called unreasonable classification, argued Mr. Hossain.

Attorney General of India, Mr. K.K Venugopal then made his submissions on the aspect of money bill. He contended that the term “targeted delivery of services” in the preamble of the Act contemplates expenditure of funds which brings the Act into the ambit of money bill under Article 110 of the Constitution. Even though the law has ancillary provisions, the main objective of the Act is delivery of services and benefits and not a single provision in the Act is unnecessary or unrelated to the main purpose/pith and substance of the Act which is giving subsidies, he argued. To this, J. Chandrachud remarked that Section 57 of the Act snaps the link with Consolidated Fund of India. In reply, Mr. Venugopal stated that Section 57 is saved by Article 110(1)(g).

The hearing will continue on May 3, 2018