“Aadhaar is like having built a bridge and looking for a river. It is hunting for problems to make itself relevant,” says Arvind Datar in SC
Senior counsel Arvind P Datar on Thursday, criticised the logic to link the UID to permanent account number (PAN) for which the government claims there are just 0.4% duplicates. The arguments in the SC on Thursday were live-tweeted by the public-spirited Prasanna S (@prasanna_s), based on which we have put together this article.
He said, "You can make a class because individuals are of course different from companies. But what is the nexus with the object? Aadhaar is sold as a panacea for all ills - black money, terrorism, and leakage, like some herbal medicine. Aadhaar is like having built a bridge and looking for a river. It is hunting for problems to make itself relevant."
Citing a speech by Finance Minister Arun Jaitley on Aadhaar Bill, Mr Datar told the Court, "... he (Mr Jaitley) says a man must have a right to not join Aadhaar. Even as late as 30 November 2016, there have been representations that Aadhaar will always be voluntary."
Commenting on this, Justice AK Sikri says, "Earlier they said that they can deny benefits without Aadhaar. Will they now say you need not pay tax (if you do not link PAN with Aadhaar)?" This of course resulted in eruption loud laughter in the courtroom.
The Bench of Justice Sikri, and Justice Ashok Bhushan, which is hearing three public interest litigations (PIL) about linking the Aadhaar number to the permanent account number (PAN) for filing income tax returns, has asked both the sides to submit written arguments by Monday.
Mr Datar also pointed out before the apex court how the government is giving a wrong impression about fake permanent account number (PAN) and the difference between PAN holders and tax returns. "Wrong impression given to the Court that there are many fake or duplicate PANs and the difference between PAN holders and returns. Proliferation of PANs is because PAN became mandatory for procuring SIM cards, credit cards, and passports."
The argument put forward by government of linking PAN with Aadhaar was requirement under the FATCA. Refuting the contention, Mr Datar said, "There is absolutely nothing in the Foreign Account Tax Compliance Act (FATCA) of the US that requires Aadhaar! Under the FATCA, what is required is only verification, which may be any valid identification and Aadhaar not necessary. FATCA applies only for financial institutional investors (FIIs)."
An inter-governmental agreement between India and the US was signed in August 2015 for the implementation of FATCA, to ensure tax is paid on the income generated from abroad.
Interrupting Mr Datar, Additional Solicitor General (ASG) Arghya Sengupta told the Court that limited argument on FATCA is that the government needs to give PAN details of Indian taxpayers to the US government. "We cannot give duplicate PAN details... (as it) causes embarrassment...," the ASG said.
When Mr Datar pointed out that as per the government submission, there are only 11 lakh duplicates in the PAN, the ASG said this was based on 0.2% sampling. "That is even more shocking. Elementary mistake of statistical sampling. When your own statistics say only 0.4% is duplicate what is the logic in asking 99.6% to link it with Aadhaar?" Mr Datar asked.
The senior counsel also questioned enforcement of Aadhaar on citizens under one or other pretext by the government and how absurd it would be if the income tax act makes Aadhaar mandatory while the Aadhaar Act says it is voluntary. He also reminded the court the the 15.10.2015 SC order has spoken unequivocally about voluntary nature of Aadhaar while limiting it to six schemes.
He said, “When the Supreme Court has given a direction, it is as much binding on Parliament as any other organisation. A SC directive or a judgment is sacrosanct unless it is set aside in a manner known to law. The Aadhaar Act must make it clear that the basis (of keeping Aadhaar voluntary) of the earlier orders have been removed. Unless the subsequent circumstances are fundamentally altered such that the earlier orders could not be passed today, the SC orders stand. Unless Aadhaar is made mandatory under Section 3, the earlier orders' basis is not removed by legislature. Even an interim order is a judicial order. As long as that judicial order remains, it (Aadhaar) is (limited to) six and six schemes alone.”
He asked, "Is the Supreme Court a mere debating society? Tomorrow they will make it mandatory for GST. MCA has the audacity to say it will be made mandatory soon for accessing MCA21 services despite the orders. I keep hearing '99% have enrolled, what is your problem?' That is the death knell of democracy when minorities are forced like this. They cannot do what they want. Constitution was designed to get the government off people's backs."
"This is a first encroachment of interim orders of the Court. It must be nipped in the bud. You cannot wait for a ripe time later. What this Bench will decide will have far reaching consequences for individual, salaried person, businessman, and partner," Mr Datar concluded.