“Should the state be allowed to insist on submission of one’s biometric data to access benefits and services? How does such a stipulation affect the relationship between the state and the people under a progressive and dynamic Constitution like India’s?”
These were the central questions that senior counsel Shyam Divan chose to deal with during his two-hour long arguments before a two-member bench of the Supreme Court on Thursday. He appeared for petitioners, including Magsaysay award winner Bezwada Wilson, challenging recent amendments to the Income Tax Act which made Aadhaar, the 12-digit unique identification number issued to residents, mandatory to get Permanent Account Number and file income tax returns.
“The Constitution of India is not a charter of servitude,” he said. The Constitution protects the sovereign power of the people and places limitations on government control. In this manner, it protects the dignity of the individual, a concept enshrined in the Preamble to the Constitution. “Otherwise, we would have to call it totalitarian. If allowed to be mandatory, this will a serious alteraction of the relationship between the republic and citizens,” he argued.
Autonomy over body
According to Divan, the Constitution provides for the individual’s autonomy over his or her body. It was for the individuals to choose whether they should part with something as intimate and personal as biometric data for any purpose. This was perhaps the idea behind making Aadhaar voluntary.
However, he said that by amending the Income Tax Act and introducing Section 139AA, which mandates compulsory quoting of the Aadhaar number to obtain PAN and file income tax returns, the government was trying to convert “what is a right into a duty”.
“The provisions of the Aadhaar Act and the Income Tax Act are in direct collision,” he added “Under Aadhaar Act, the whole system is voluntary. Under Income Tax Act, it is being made mandatory.”
Though this aspect of whether Aadhaar should be voluntary or mandatory is before a Constitution bench of the Supreme Court, it was important to analyse it in the context of the Income Tax Act amendments as state was trying to withdraw a key right based on the concept of informed consent, he further added.
Divan said individuals had total autonomy over their bodies, except in specific conditions like imprisonment where the state is allowed to collect certain data like fingerprints for specific and limited purposes.
Quoting legal scholar John William Salmond, Divan said the idea of property included all legal rights. “A man’s primary property is his own person,” he said, drawing from Thomas Hobbbes and John Locke, influential Enlightenment philosophers who contributed to the concept of individual rights. Article 21 of Indian Constitution, which states that no person shall be deprived of his life or personal liberty except according to procedure established by law, protects the individual’s dominion over his or her body and therefore, the new income tax law went against Article 21.
Divan also argued that Section 139 AA creates two classes of income tax assessees and discriminates in favour of one. One class was people willing to give their biometric data to the state and the other unwilling to commit to such a system. This was in violation of Article 14, which promises the citizens equality before law.
However, the bench intervened and said Section 139 AA could be read as a penal provision for not following a certain rule. The judges wondered how penal provisions could be read as discriminatory. “If this argument is accepted and taken to the logical conclusion, every person could object to every penal provision,” the bench said. In this regard, the bench pointed out the people do give out their fingerprints to passports.
To this, Divan said that there was a logic and reasonableness in collecting such information for passports as the state had the duty to establish identity and protect an Indian citizen in case of situation on a foreign soil. As far as the income tax law goes, the petitioners, despite willing to pay income tax, are being differentiated because they do not want to subject themselves to a system that invades into their autonomy over their body.
Further, the lawyer said paying income tax was neither a benefit nor a service as envisaged in the Aadhaar Act. It was infact an extraction from the citizens, who agrees to it as one of the costs of civilisation.
Attorney General Mukul Rohatgi will present his arguments on Tuesday.