Will the Supreme Court save present and future Indians from Cyber-Biometric Panopticon?
On 21 April 2017, when Justice AK Sikri headed Bench of Supreme Court heard two cases Writ Petition (Civil) 277 of 2017 by Major General (Retd) Sudhir Vombatkere and Bezwada Wilson, leader of Safai Karamachari Andolan besides another petition filed by CPI leader Binoy Viswam related to violation of rights due to amendments in the Aadhaar Act, 2016 through Finance Act, 2017 enacted as a Money Bill, the questions he asked Attorney General gave a sense of deja vu.
Some four years ago, the then Chief Justice AK Sikri headed Bench of the Punjab and Haryana High Court Bench had heard a case related to biometric Unique Identification (UID)/Aadhaar and passed an order dated 19 February 2013 wherein he had noted that the petition challenging mandatory requirement of Aadhaar “raises a pure question of law”. In its order, the Bench headed by Justice Sikri observed, “In this writ petition filed as PIL, the petitioner has challenged the vires of notification issued by Union of India for making it compulsory to have UID Cards."
However, since the Executive Order of Union Territory of Chandigarh was withdrawn, the case too was disposed of on 2 March 2013 with a two-page order. In this way the attempt to make. Aadhaar mandatory, which has emerged as an act of bullying by the government agencies and turning citizens into subjects by making right to have fundamental rights conditional on biometric identification was stopped in the tracks. In a setback to efforts to bulldoze Aadhaar and related schemes, following the direction issued to the Union of India and Union Territory of Chandigarh by Punjab and Haryana High Court in the matter of Civil Writ Petition 569 of 2013 filed in the High Court against Union of India and others, the Executive Order for making UID/Aadhaar mandatory was withdrawn.
In the current case, notably, Maj Gen Vombatkere, who retired as Additional Director General Discipline and Vigilance in Army Headquarters, has prayed that the Supreme Court should declare that Section 139AA of the Income Tax Act, 1961 (as introduced by Section 56 of the Finance Act, 2017) as ultra vires, unconstitutional, null and void and in particular violate Articles 14, 19 and 21 of the Constitution of India.
Section 139AA of the Income Tax Act inserted by the Finance Act, 2017, makes Aadhaar mandatory for filing Income Tax Returns (ITR).
As a consequence, Aadhaar has been made mandatory for obtaining permanent account number (PAN), continued validity of PAN and for filing of return under the Income Tax Act. He has also prayed that the Court should pass an order allowing filing of income tax return of individuals without Aadhaar number. He has also sought directions that no citizen of India be coerced to obtain an Aadhaar number and that the program under the Aadhaar Act is entirely voluntary even for assessee under the Income Tax Act, 1961. It has been contended that provision of biometrics has no reasonable relationship with the objectives of the Aadhaar Act as it ends up creating a wrongful classification among taxpayers.
While hearing the case, Justice Sikri asked the Attorney General as to how government can compel anyone to get Aadhaar when there are interim orders of the Constitution Bench.
In his reply, what Attorney General said was something, which was already stated by Ravishankar Prasad, the Minister of Law, Electronics and Information Technology, on 10 April 2017 during the Short Duration Discussion on Aadhaar in the Rajya Sabha. He said, “There is no stay by the Supreme Court. We are being governed by a mandate of the Aadhaar Act passed by the Parliament.”
He added, “I am very clear in my understanding of law that if the Parliament enacts a law and unless the Court stays the operation of that law, this law will hold the field and that is what that it holding the field.”
The minister referred to interim orders of the Supreme Court saying they were passed in 2015 and the Aadhaar Act came in 2016, assented by the President and became effective. He took the position that “My understanding of law is very clear that an interim order is only for the purposes of interim arrangement till the Parliament structures it. It is not a judgment. It has been referred to a Nine-Bench or Seven-Bench. Maybe, this law will also be considered.”
Notably, the Aadhaar Act became effective after it was notified on 12 September 2016 in Gazette of India.
It is germane to observe that the Minister feigned ignorance about the order of the Division Bench of Supreme Court dated 14 September 2016 in the matter of Writ Petition (Civil) 686 of 2016 wherein, the Court reiterated the Constitution Bench’s order dated 15 October 2015. The order reads: “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23 September 2013. We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other”.
While making his submission Attorney General too seemed to suffer from selective amnesia regarding Court’s order dated 14 September 2016 passed after two days of the notification of the Aadhaar Act. It is an established constitutional norm that the last order of the Supreme Court is the law of the land.
Like the Minister, the Attorney General referred to an irrelevant order of the Supreme Court dated 6 February 2017 in Lokniti Foundation Vs Union of India case. The fact is that in its counter affidavit in the Court, the Attorney General stated that biometric Aadhaar is voluntary. This submission, which has been reproduced in the order of Chief Justice of India headed two-Judge Division Bench including Justice NV Ramana stated, “Currently Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection.”
In its petition, Lokniti Foundation, the petitioner had prayed that “The Aadhaar Card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers that can ensure 100% verification of mobile phone” but pursuant to Attorney General’s submission, it is apparent that the Bench decided to adhere to Constitution Bench’s order that keeps biometric Aadhaar Number voluntary.
Misquoting this very order, the Minister misinformed the Rajya Sabha that “there is the system of Aadhaar-enabled verification for SIM card for the user. I have got the copy of the order. The Supreme Court has approved it as a very good system, which has been incorporated.”
Notably, drawing on the same misrepresentation, the Department of Telecommunications (DoT) under Ravishankar Prasad has issued a circular dated 23 March 2017 making Aadhaar mandatory “regarding 100% E-KYC based re-verification of all existing subscribers” in the name of for “Implementation of Supreme Court orders”.
It is evident that the Minister and the Attorney General will have us believe that two-Judge Bench’s order will prevail over the five-Judge Constitution Bench’s order.
The Minister’s exercise in misrepresentation was once again exposed by Jairam Ramesh in the Rajya Sabha wherein he pointed out that the Minister “did not mention that there was a Supreme Court Order after the Act was passed on 14 September, 2016” and he underlined that “he quotes selectively from the 2015 Supreme Court Orders. Nowhere in those Supreme Court Orders does it say that the Supreme Court’s Orders are contingent on Parliament passing an Act.”
Maj Gen Vombatkere have argued, “The State should ensure unhindered compliance of a person's obligation to pay income tax. Whether or not an individual is willing to part with his or her core biometric information is completely irrelevant to the discharge of this legal obligation, which is based on an objective criterion of the total income earned by a person.”
He has submitted that, “The impugned provision violates Article 14 of the Constitution of India and is palpably arbitrary and illegal inasmuch as it creates an artificial impermissible classification between those persons who have parted with biometrics and those who have not parted with biometrics for the purpose of payment and collection of income tax.”
In the light to this submission, the Court is likely to apply the doctrine of prohibition of “unconstitutional condition” which means any stipulation imposed upon the grant of a governmental privilege that in effect requires recipient of the privilege to relinquish some constitutional right. The submission demonstrates that it is unreasonable in a special sense that Aadhaar takes away or abridges the exercise of a right protected by the Constitution.
Apparently, under some external influence, Central Government’s stance has been insincere from the every outset. The total estimated budget of the biometric Aadhaar number project has not been disclosed till date. In any case, unless total estimated budget of the project is revealed all claims of benefits are suspect and untrustworthy.
After the trashing of Aadhaar by Lok Sabha’s Parliamentary Standing Committee on Finance and later by Rajya Sabha, the Court too will now have the opportunity to see through the coercive and unconstitutional nature of Aadhaar number project on 26 April 2017 when the case of Major General Vombatkere and others is scheduled to be decided by the Bench headed by Justice Sikri.
Meanwhile, the original case Writ Petition (Civil) No. 494 of 2012 filed by Justice KS Puttaswamy (Retd.) has been clubbed with 13 more petitions seeking scrapping of Aadhaar, which requiressetting up of Constitution Bench awaits the decision of the 44th Chief Justice of India despite admitted “urgency” by 42nd Chief Justice headed Constitution Bench after 43rd Chief Justice failed to set it up during his tenure.
Citizens in general and legal fraternity in particular ought to note that from now on when Supreme Court says, “its urgent”, it means the matter can wait at least for one and a half year!
Is it the case that the decision to set up Constitution Bench will be taken after July 2017 by the 45th Chief Justice?
(The author is Member, Citizens Forum for Civil Liberties (CFCL). He had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. He is editor of www.toxicswatch.org