April 10, 2018
The Supreme Court Constitution Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, hearing Aadhaar and related linkages issue (petitions saying that it was unconstitutional), was told by Attorney general K K Venugopal on Tuesday (April 10) that Section 59 of the Aadhaar Act seeks to provide a safeguard to all the actions done previously since the Act came into existence.
He said that Section 59 further protects all the notifications issued. He said that this section has a retrospective effect.
Justice Chandrachud asked: “Section 59 protects the notification of April 29, 2009. But does it cover the entirety of the Aadhaar?” Venugopal said yes.
The AG pointed at two things: money and data sharing. He said that there is no charge for form for Aadhaar enrollment. He also said that there should be no problem in sharing of Aadhaar number (and information) with, say, the bank account, because minimal demographic information gathered.
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He also said that no person should suffer just because he or she did not enroll for Aadhaar.
Another issue of forms came up. It was said that the first two forms did not talk of detailed biometrics, because it was planned and prepared with no more than one crore people in mind.
Then came the third form, from where biometrics were made mandatory. Senior counsel Rakesh Dwivedi pointed out that Aadhaar will not be available to anyone without biometrics. It was found that basically the second form (which also did not want biometrics) was never used, as pointed out by Justice Sikri.
The first two forms did not have any reference to biometrics. It was only inserted in the third form. That was where the state argued that the first two forms were hardly used because the government had only mandated enrollment of one crore individuals (who would be eligible for the government the subsidies, for which Aadhaar was designed in the first place).
It has also been said that biometrics of a person cannot be obtained without consent. However, the CBI had gone to the Bombay High Court to obtain the biometrics of an accused in a rape case. After the UIDAI refused to give the details.
The CJI said that there has been minimal intrusion under this Act. “It does not mean that it has the protection of section 59. Just because section 59 exists to protect it, doesn’t mean that the entire procedure has been followed.”
As an example the CJI said: “For example, in the form, in the gender section, it says transgenders. It means inclusion.”
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Starting his submissions, Additional Solicitor General Tushar Mehta compared section 139AA of the Income Tax Act and Right to Privacy under article 21. He said that right to privacy is not absolute. It is subject to certain limitations. He said that a legislation has to pass all four tests to be valid. Talking about section 139AA’s importance he said it was important for the linking of PAN card under the Income Tax Act.
He said that in case of registration of sale deed, even for a literate person, thumb impression is mandatory, and it is stored as well.
“Those who have already taken PAN do not have any legitimate interest in withholding information that they have already provided for obtaining PAN. Aadhaar will prevent duplicate PAN,” he said.
He said fake PAN cards have led to the increase in the number of shell companies. He said that on many instances more than one PAN had been issued to one person or one PAN number to several individuals.
Tushar Mehta will continue tomorrow.
—India Legal Bureau
