Day 27 Arguments

April 11th 2018

Day 26 of arguments concluded with Mr. Tushar Mehta arguing that the Binoy Viswam judgement must not be revisited. Binoy Viswam upheld the linking of PAN and Aadhaar. Today, Mr. Tushar Mehta restated this argument, adding that the challenge to the Aadhaar scheme in this case, (i.e. Puttaswamy v. UOI), must be limited the tests of Article 21. Mr. Mehta quoted Israeli Jurist Aharon Barak, who has said that to meet the test of proportionality the law must have a public purpose, have a rational nexus to the objective sought, and be a necessary measure. Additionally, no other alternative measure should be available. Mr. Mehta argued that the court cannot question the legislature’s wisdom unless the law is shockingly disproportionate. The Aadhaar Act satisfies the test of reasonableness, proportionality, and balancing of interests.

To answer the court’s question on why the government is treating the entire population as potential criminals, Mr. Mehta quoted US Court of Appeals judgments that suggest that frisking passengers or putting up checkpoints are not suggestive of rampant criminality in a community. He argued that the aim is not to treat everyone as a terrorist but to safeguard the larger public interests. Here, Sikri J pointed out that the facts in an American case cannot be compared to the facts in the case of Aadhaar. Chandrachud J agreed. Mr. Mehta clarified that he is referring to these judgements to show that a statutorily allowed intrusion of privacy does not mean a presumption of guilt.

He argued that Aadhaar is a measure to increase the generation of revenue, curb black money and prevent tax evasion. He alleged that Rupees 33,000 crore worth of taxable transactions have been reported. Rule 114B of the IT Rules requires the production of a PAN number to file returns. A person can easily deny having a PAN card and evade taxes. He argued that linking PAN and Aadhaar prevents such tax evasion. In view of this, this invasion of privacy the Aadhaar is a reasonable restriction.

Mr. Mehta argued that in a ‘competition’ between the right to privacy and the right to information about a citizen, the latter prevails for the sake of larger public interest. He quoted Narayan Dutt Tiwari v Rohit Shekhar which held that privacy is not absolute and can be invaded to fulfil a larger interest. He also quoted the Subramanian Swamy judgement to argue that fundamental rights can be reasonably restricted. In X v Hospital Z, privacy was held to be subordinate to the right to information.

Mr. Mehta argued that balancing of fundamental rights is the constitutional duty of the Court. The needs of the society must drive the reasonable restrictions. As held in Om Kumar v Union of India, limitations on fundamental rights are constitutional if the measures taken are necessary and proportional. “The right to move your fist stops when my nose begins”, he said. Even the fourth amendment to the American Constitution does not safeguard all expectations of privacy, but only ones that are reasonable. This has been held in Vernonia School District 47J v. Acton. Further, the right to privacy in the European Convention of Human Rights is also not absolute and can be curtailed for the purpose of national security.

Mr. Mehta argued that one need not prove a ‘compelling state interest’ to justify the Aadhaar scheme – a legitimate state interest is enough. If there is an overwhelming public interest then there is no need to apply the ‘least intrusive’ (on fundamental rights) test. Mr. Mehta’s concluding arguments related to the prevention of money laundering. Hawala transactions and money laundering is a global concern. Sikri J said that money laundering is certainly a problem but asked how the Aadhaar is preventing money laundering. Mr. Mehta said that the amended rules under the Prevention of Money Laundering Act (PMLA) mandate that an Aadhaar cardis required to open an account. Explaining the scheme of the PMLA, he argued that it is not a toothless law anymore because of the implementation of Aadhaar.

With this, the arguments on the 27th day concluded. The matter will be next heard on April 12th 2018.