AADHAAR CONTROVERSY

Aadhaar will help India fulfil its international obligations, attorney general tells SC

Mukul Rohatgi dismissed arguments against making Aadhaar mandatory, calling them the ‘luxury of the rich’.

The Centre on Tuesday reiterated before the Supreme Court that Aadhaar, the 12-digit unique identification number issued to residents, can be made mandatory for accessing certain services or benefits, and that Aadhaar will help fulfil India’s international obligations in the fight against black money.

Attorney General Mukul Rohatgi also dismissed cases against making Aadhaar mandatory, saying those arguments were the “luxury of the rich”. “It is the poor who need these benefits and it is they who need this identification,” he said before a bench of Justices AK Sikri and Ashok Bhushan in the Supreme Court.

He also added that citizens do not have absolute right over their bodies and that an array of laws and rules have already imposed limitations on this right.

The government’s top lawyer presented his arguments on a public interest litigation which challenged recent amendments to the Income Tax Act that made Aadhaar compulsory for obtaining a Permanent Account Number and for filing income tax returns.

Parliament’s right to legislate

Rohatgi said it was wrong on the petitioners’ part to suggest that by making Aadhaar mandatory for income tax returns, the Centre had violated past orders of the Supreme Court that clearly said the unique identification number should be kept voluntary until its constitutionality was verified.

Since 2013, the court had passed multiple interim orders restricting the Centre from making Aadhaar compulsory for accessing any scheme or benefit. A number of petitions were filed, claiming that making Aadhaar mandatory violated a person’s right to privacy. Since there was much ambiguity on the privacy jurisprudence, the petitions have been referred to a Constitution bench.

Rohatgi said the interim orders were passed at a time when Aadhaar was only an executive scheme. In 2016, the Centre passed the Aadhaar Act, giving statutory backing to the programme. Section 7 of the Act, he argued, provided the Centre and State governments powers to make Aadhaar authentication necessary if need be.

Therefore, he said the amendments to the Income Tax Act were in no way going against the Aadhaar Act. Further, the attorney general argued that the interim orders cannot restrain the sovereign authority of the Parliament to legislate – the authority that it has chosen to enforce in making the amendments to the Income Tax Act.

“Parliament is the voice of the people and has supreme powers to legislate,” he said.

International obligations

Rohatgi said the very purpose of taxation was to use the revenue generated to provide an orderly society to the people. When people pay tax, the money is used for their benefits through creation of amenities, he said. Section 139 AA is one such measure to ensure the orderly collection of taxes.

The very idea of launching PAN in 1975 was to provide tax payers with a “unique identification number”. At the time, the technology that existed allowed only the use of photographs as an identification tool. But in the current context, it has been proved beyond doubt that biometrics is the best way of identification.

The attorney general pointed out that there were 29 crore PANs in the country, out of which 5 crores were income tax assessees. Not all of them pay taxes.

The PAN in the past could be obtained with a secondary document such as one’s ration card or driving licence. Since security features in these secondary documents were not strong enough, it was very easy to obtain a forged document and then get a PAN. This meant the PAN was not foolproof in the manner in which it existed till date, he said.

Rohatgi said even with a low verification rate of 0.2% per year, at least 10 lakh PANs were found to be fake. In one case, a person managed to evade taxes of Rs 5,000 crore by obtaining a complex web of PANs. This matter is currently being investigated.

By linking Aadhaar to PAN, the latter was also being made foolproof since a person would be locked to a single PAN through biometric verification. “There are over 113 crore Aadhaar numbers and not a single case of duplication,” he claimed.

Further, the attorney general said a foolproof identification system was essential for India to meet its international obligations in the fight against black money. For example, India has agreed to exchange financial information with the United States under the latter’s Foreign Account Tax Compliance Act, which promotes cross-border tax compliance by implementing an international standard for the automatic exchange of information related to those paying taxes in the United States. “We cannot provide PAN, which could have been obtained through suspect secondary documents,” he stated.

This was a crucial aspect since black money is being used to fund illegal activities like terrorism and drug trafficking, he said.

Pointing to recent media reports of massive Aadhaar leaks in Jharkhand, he said it was not the Centre but a State government website that had put out the data. Even here, he said only the Aadhar numbers were leaked, not the biometric data, and that misusing the numbers is difficult.

However, under Section 29 (4) of the Aadhaar Act, publishing the unique identification numbers is a punishable act.

Rohatgi also stated that Aadhaar authentication was “blind”. In other words, the authenticating server does not collect data on why the authentication was initiated.

No absolute autonomy over your body

The attorney general said unlike the petitioners’ claims, the Constitution did not provide citizens absolute autonomy over the bodies.

“The petitioners are saying that they want to live in a Utopia where there is no state,” he charged.

Providing a number of other areas where identification and scanning has become commonplace, such as full-body scans at airports, he said these have become necessary to ensure an orderly society.

“No constituent can say they will not identify themselves. If this is allowed, tomorrow someone will claim he won’t subject himself to the Census,” he added.

Rohatgi pointed out that organ trade is another area where state has imposed restriction on how one could use their bodies. Restrictions apply to pregnancy too, which prohibit abortions after 24 weeks.

“Your right to your body is not absolute as the state even has the powers to execute you. Otherwise, you would say one can pick weed off the road and smoke,” he said. The law also provided for obtaining fingerprints and Deoxyribonucleic acid (or DNA) samples during the process of a trial.

However, intervening, justice Sikri said some of the examples provided by the Centre to support mandatory Aadhaar, like collection of fingerprints for property registration and driving licence, may not be apt as they are voluntary. He also cited judgments delivered by the United States Supreme Court, which allowed dope tests for children to curtail drug abuse in sports.

When Rohatgi wondered how one can question Parliament’s move to take preemptive steps to root out tax evasion, Sikri said to prevent a crime, the state cannot presume that everyone is a suspect. “The argument here is, if a regulation infringes my fundamental right, it should be set aside,” the judge observed.

Concluding his arguments, Rohatgi said a large number of people in India have no identity and that the Centre could not shut its eyes to this reality. “The petitioners may say they have the right to be forgotten. But there are those who want to be remembered. This is also upliftment. To be unidentified is the luxury of the rich.”

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