Legislation and legality

At one point in its recently delivered judgment, in Binoy Viswam v. Union of India, the Supreme Court described the dispute over Section 139AA of the Income Tax Act, 1961, as falling within a category of what “Ronald Dworkin calls ‘hard cases’”. The petitioners before the court had argued that the provision, which makes it obligatory on individuals filing income tax returns to link their permanent account numbers (PAN) to their Aadhaar, was unconstitutional as it, among other things, infringed a number of fundamental rights.

The court, however, in declaring this case as “hard”, was effectively telling us that its abilities were somehow hamstrung by the nature of the dispute, that despite the strength of the petitioners’ arguments there existed principled reasons why it might be difficult for it to intervene. Unfortunately, this assertion flies in the face of American philosopher-jurist Dworkin’s ideas which the court sought to invoke.

While at first blush, a quibble over this categorisation might seem a largely frivolous concern, seeing as it is made on apparently pedantic grounds, in reality the court’s mistake here goes to the root of why it got its decision in Binoy Viswam as it did, and why it so often fails to uphold critical civil liberties when faced with acts of governmental coercion.

Dworkin’s ‘hard cases’

For Dworkin, “hard cases” are those disputes where “no settled rule dictates a decision either way”, and where, therefore, “it might seem that a proper decision could be generated by either policy or principle.” In other words, they encompass cases where there exists a particularly knotty controversy over deciding what the law really is, where an application of differing value judgments could plausibly result in contradictory identifications of the law.

To illuminate this point, in his book, Law’s Empire, Dworkin cites McLoughlin v. O’Brian, a 1983 House of Lords case involving an automobile accident. Here, Ms. McLoughlin’s husband and four children were injured after their car was hit by a lorry. She only heard about the accident a few hours later, and when she drove to the hospital where the rest of her family was admitted, she was told that one child had died and the others were seriously injured. Ms. McLoughlin, as a result of these revelations, suffered a nervous shock, and she later sued the lorry driver whose negligence had caused the accident.

This case, in Dworkin’s belief, was “hard” because there was no existing precedent where a person was awarded damages despite being absent from the scene of the accident. To decide such a case, Dworkin said, a judge must view “law as integrity”, that “propositions of law are true if they are derived from principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community’s legal practice.” In other words, a judge deciding such a dispute must test her interpretation by asking whether her decision could form part of a coherent theory that justifies the entire network of political structure and legal doctrine of their community.

The issues in Binoy Viswam, however, called for no such Herculean interpretive exercise. Nor did it require the court to indulge in any lawmaking. The facts were simple enough, and the court, notwithstanding its assertions to the contrary, did not have to decide on the “wisdom of the Legislature in enacting a particular law”, but merely on its constitutionality. To do this, it only had to apply existing precedent to rule on whether Section 139AA violated one or the other of the fundamental rights guaranteed in Part III of the Constitution. Regrettably, the court’s answers to these basic questions are patently misjudged.

Despite keeping arguments over privacy outside the scope of their submissions — given that a larger bench of the Supreme Court has been asked to rule on whether India’s citizens possess a fundamental right to privacy at all — there were a number of acute arguments that were made to show the court that Section 139AA violated the rights to equality, to practise any profession, and to personal liberty of the petitioners. However, each of these arguments was dismissed almost on the singular ground that the state has a legitimate interest in making classifications to effectuate its policy decisions. This might seem like an unexceptionable proposition. But in effectively holding that the government has the power to undermine rights to achieve policy goals (an ironic conclusion given that Dworkin, who the court relies on, championed rights as trumps) the court has accepted, sans reasons, sweeping conclusions drawn by the state.

Casting away concerns

For instance, the court altogether rejected the contention that the Income Tax Act cannot make Aadhaar compulsory when the core legislation, the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016, makes enrolment in the scheme voluntary. The court did this by accepting as gospel truth the state’s arguments that the linking of Aadhaar and PAN can help eradicate the ills of tax evasion caused by a proliferation of black money. Several significant concerns highlighted by the petitioners, which showed that both biometric details and iris scans can be forged, were also swept aside without so much as a mention. As a result, the state’s argument was allowed to stand, in spite of the fact that almost no rational nexus has been shown to exist between the government’s purported aim of eradicating black money and the classification that Section 139AA makes in compelling individuals alone to secure a unique identity.

The court showed a similar disdain in dismissing arguments made on the arbitrariness that is inherent in Section 139AA. The reasons supplied by the petitioners on why the linking of Aadhaar and PAN is capricious were wholly ignored. For example, the judgment failed to heed to the fact that the consequences of an invalidation of a person’s PAN might result in a virtual “civil death”, as the senior counsel Arvind P. Datar, who represented one of the petitioners, described the provision. Instead the court invoked the proposition that a legislation cannot be struck down on grounds of arbitrariness alone. To do this, it relied on the verdict from 2015 in Rajbala v. State of Haryana, ignoring, in the process, a mountain of earlier precedent where arbitrary state action, including by way of legislation, has been held as antithetical to the guarantee of equality.

Now, it’s plain to see that even if Parliament represents the interests of the people, any legislation made by it is a product of the proclivities of the government in power. To check whether a legislation is arbitrary or not is not to question the wisdom of the legislature, but rather to examine whether the classifications that a law makes are rational and to scrutinise whether Parliament has exercised judgment by responding to reasoned analysis as opposed to the whims of motivated interest groups. Here, the court finds no need for such an inquiry because a legislation, it holds, cannot be subject to judicial review for being purely arbitrary.

Arguments on how Section 139AA violates a person’s right to practise any profession or carry on any trade under Article 19(1)(g) also met with a similar fate. And this cloud has only the thinnest of silver linings — when a Constitution Bench eventually decides on whether Aadhaar as a collective policy infringes the rights to privacy and bodily integrity (if indeed such liberties are deemed as fundamental guarantees), there remains the possibility that Section 139AA may be rendered void.

But, for now, we’re left with a deeply undesirable and unsatisfactory outcome: all those who already possess an Aadhaar card must integrate it with their PAN, regardless of whether they ever imagined having to submit to such a burden at the time of securing the identity, and where any person who files an income tax return after July 1 must have, at the least, applied for a unique identity. As to how this distinction is constitutionally sustainable, the court tells us little. Ultimately, this wasn’t a “hard case” to decide. But by getting its conclusions as it has, the judgment’s consequences are certainly likely to prove difficult, imposing, as they do, an unreasonable burden on our essential civil liberties.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

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Printable version | Apr 12, 2021 7:18:03 AM | https://www.thehindu.com/opinion/lead/legislation-and-legality/article19104955.ece

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