The government is selling Aadhaar like “herbal medicine” — a panacea for all ills, from black money to terrorism to leakage, senior advocate Arvind Datar told the Supreme Court on Thursday, in his rebuttal to the Centre’s argument that the Aadhaar scheme was foolproof and leakproof.
“Anybody with common sense would ask, how will Aadhaar check black money? Aadhaar was sold as a panacea for all ills — black money, terrorism, leakage etc. like herbal medicine. Aadhaar is like having built a bridge and looking for a river. It is hunting for problems to make itself relevant,” Mr. Datar, representing main petitioner and senior CPI leader Binoy Viswam, submitted before a Bench of Justices A.K. Sikri and Ashok Bhushan on Thursday.
Mr. Datar cited the figure of only 0.04% of PAN cards being duplicates. He asked whether the government had done any study before introducing 139AA. "For 0.4% duplicates, 99.6% must seed their Aadhaar with PAN. Is that reasonable restriction under Article 19(6)?" Mr. Datar, assisted by advocates Sriram Parakkat and M.S. Vishnu Sankar, argued.
"The AG says 99% have got Aadhaar. So what's your problem? That argument is the death knell of individual rights and democracy," he submitted.
He quoted American jurist William O. Douglas: "Nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness.”
This was on the final day of the marathon hearings on the challenge against Section 139AA of the Income Tax Act, which mandates citizens to link Aadhaar with PAN for filing income tax returns and for the continued validity of their PAN.
Mr. Datar argued that without a PAN card, people's economic lives would come to a standstill. He said interests —the ability to do business versus duplicate PAN cards — had to be balanced.
He contended that making Aadhaar voluntary in the Aadhaar Act and mandatory under Section 139AA suggested “parliamentary dichotomy”.
He contended that Parliament could not have made Aadhaar mandatory without removing the basis of the Constitution Bench judgment on October 15, 2015, declaring Aadhaar’s use to be voluntary.
When Justice Bhushan intervened, observing that the voluntary nature of the Aadhaar Act dealt with only social benefit schemes, while Section 139AA was a separate and fiscal provision, Mr. Datar argued that the ambit of a Supreme Court judgment cannot be compartmentalised between welfare and non-welfare activities.
The only way Parliament could have made Aadhaar mandatory was by removing the basis of the Supreme Court judgment.
Besides, he argued that the Union and all States were present before the court when it passed the series of orders directing the government to employ Aadhaar on a purely voluntary basis.
The Attorney General even gave an undertaking to the court to this extent.
“A Supreme Court directive or judgment is sacrosanct, unless set aside by a process known to law. There is a clear collision between the Aadhaar Act and the Income Tax Act, and if both Acts are allowed to stand the results would be absurd,” he argued.
On the government’s argument that Aadhaar is necessary for the country to remain compliant to the Foreign Account Tax Compliant Act (FATCA), Mr. Datar said nothing in the FATCA created a requirement for Aadhaar. Here, government counsel Arghya Sengupta intervened to submit that “the problem is that if we give the United States duplicate PANs, it becomes an embarrassment.”
Mr. Datar responded saying that this had nothing to do with the stated objective of of 139AA.
He wrapped up his submissions with a question directed at the Bench: “Darkness does not come all at once. It is in the twilight that we must be most vigilant, or we are lost. Are fundamental rights the playthings of the majority?”
