The arguments are still ongoing, but senior advocate Shyam Divan gave the anti-Aadhaar debate a major boost in the courtroom when he argued yesterday, April 27, that the “State has no right of eminent domain on the body”.
In other words, our fingerprints and iris scans – digital copies of our own bodily parts – cannot become the reason why our entire bodies and bodily freedom, dignity, right to food and nourishment, freedom to move and incalculable other rights become subservient to the former’s prior existence.
"My fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life," advocate Divan said.
Mr Divan: can you expropriate for all time, my fingerprints and iris scans, and put them in a centralised depository?— Gautam Bhatia (@gautambhatia88) April 27, 2017
Mr Divan: in a digital world, informational self-determination is a part of 21, 19, 14.— Gautam Bhatia (@gautambhatia88) April 27, 2017
Basically, Divan showed how the debate on Aadhaar breaching privacy by leaking data is also intrinsically connected to the State’s imposition of Aadhaar as a violation of the citizens’ right to bodily freedom, autonomy and other unassailable rights.
“The Constitution is not a charter of servitude,” Divan said, while arguing in favour of the petitioners in the Aadhaar-PAN case that is being heard in the apex court on April 27-28, 2017.
And (2) Shyam Divan's arguments mark a significant shift: from privacy to personal autonomy and bodily integrity. The reason for this is + https://t.co/DS2pZogNzZ— Gautam Bhatia (@gautambhatia88) April 27, 2017
+ that the issue of privacy has been stuck with a larger bench for the last year and eight months, without a hearing. If privacy was argued+— Gautam Bhatia (@gautambhatia88) April 27, 2017
+ here, the Court would simply "tag" this case with that one, and it would get buried. So Mr Divan chose to base his arguments on autonomy.— Gautam Bhatia (@gautambhatia88) April 27, 2017
Two writ petitions challenging the latest amendment to the Income Tax Act – the amendments were brought in clandestinely as part of the Finance Bill, 2017 (now Finance Act), as a money bill, thereby bypassing Rajya Sabha altogether – are being heard in the Supreme Court by a bench of Justices AK Sikri and Ashok Bhushan.
The hugely controversial amendment in the Income Tax Act, that is being debated in court, brought in the brand new Section 139AA that makes submission of one’s Aadhaar or UID compulsory for filing tax returns, as well as to obtain and retain the Permanent Account Number (PAN).
Both these legal requirements, if not overturned, will be implemented from July 1, 2017, and it will be a penal offence if the Aadhaar number is not produced during income tax filing. In other words, not possessing an Aadhaar would turn the otherwise tax-compliant citizen into a criminal.
The two petitions, therefore, challenge these draconian aspects of the Aadhaar, in which a gigantic and proven to be insecure database of biometric identity-based numbers would become crucial to every aspect of the citizen’s life and availing of civic, governmental and private services.
While advocate Aravind Datar is representing petitioner 1, CPI leader Binoy Viswam, advocate Shyam Divan is representing Dalit activist Bezwada Wilson and retired Army officer Major General Sudhir Vombatkere. The petitioners’ arguments will be closing on April 28, while the attorney general Mukul Rohatgi will defend the Union of India and UIDAI on Tuesday, May 2, 2017.
The major points that have so far been raised by the petitioners are as follows:
1. Petitioners being “conscientious objectors to the Aadhaar project”, we need to understand how the Aadhaar violates bodily integrity and personal autonomy, perpetuates discrimination and disallows the voluntary nature of Aadhaar (as mentioned in the Aadhaar Act) to be realised.
For example, if the petitioners wish to pay tax but not to have an Aadhaar (because it’s voluntary), then they are in a state-induced and discriminatory conundrum.
2. The petitioners said that the Aadhaar would create two types citizens – those with the UID and those without. How can those without Aadhaar face penal consequences even though Aadhaar is voluntary in the Act, but compulsory in amendments to the Income Tax Act?
Mr Divan: Discriminatory because it creates two classes of assessees: those who have parted with their biometrics and those who refuse.— Gautam Bhatia (@gautambhatia88) April 27, 2017
Petitioners said this violates Article 14 of the Constitution, which guarantees the right to equality of all citizens in the eyes of law.
"How can you engraft a provision into the Income Tax Act making it mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary," advocate Divan asked.
3. Petitioners said that Aadhaar would act as an “electronic leash” on the citizens and create fertile grounds for 24X7 surveillance by the State. Citizens would be converted to slaves if Aadhaar is made mandatory and not uncoupled from PAN, and for performing civic duties like paying ones taxes.
4. Aadhaar is insecure, riddled with leaks from government websites, prone to being hacked. Petitioners argued that massive data leaks from various public and state-owned websites, such as the Jharkhand Directorate of Social Security, which ended up displaying the UIDs and bank account numbers of over a million pensioners.
Similarly, thousands of private enrollment agencies handling work for UIDAI have leaked data, latest high-profile example being that of MS Dhoni. Forcing Aadhaar on citizens is therefore forcing them to willingly embrace a lifetime of digital insecurity.
5. Petitioners said the voluntary aspect of Aadhaar (in the Aadhaar Act) presumes consent of the part of the citizen. But when parents are told that their babies would get birth certificates only when they get an Aadhaar number, then we violate this crucial aspect of consent because babies have none. Why must children and newborn babies be forced to get Aadhaar, a digital fetter than they didn’t choose to be theirs?
6. Petitioners said that denial of food rations and other services because of Aadhaar’s biometrics-based UID’s inability to read accurately has left many hungry and pushed them into deeper poverty. Mid-day meals could be denied to children in schools if they don’t produce Aadhaar, a threat which would direct impact poor families sending kids to state-run schools.
7. Petitioners said that the Aadhaar project would fundamentally alter the relationship between the State and the individual, as civil liberties will be violated. The Aadhaar programme went against the concept of limited government, and biometrics cannot be collected wholesale and stored in central databases that are also terribly leaky.
Mr Divan: limited government is not compatible with tethering citizens to an electronic leash.— Gautam Bhatia (@gautambhatia88) April 27, 2017
8. Petitioners concluded that the Aadhaar project is “unworkable, unreasonable, void, colourable and discriminatory".
Advovate Divan said, “The Constitution of India is not a charter of servitude”.