Observer Desk

Posted on 06.03.18 by

Aadhaar Act Case : Day 14 Arguments

On 6.02.2018, the 5 Judge bench of the Supreme Court comprising Chief Justice Dipak Misra, and Justices A.M. KhanwilkarD.Y. ChandrachudA.K. Sikri and Ashok Bhushan continued hearing the Aadhaar Act case (Puttaswamy v UOI), to decide the constitutional validity of the Aadhaar Act.

The arguments in the case before the Supreme Court over the span of 13 days has led to several key postulations being raised by three counsels – Mr. Shyam Divan, Mr. Kapil Sibal, and Mr. Gopal Subramanium – against the Aadhaar Act. Today, the 14th day of arguments, saw Mr. Arvind Datar representing M.G. Devasahayam and other petitioners in this matter.

Mr. Arvind Datar and Mr. Shyam Divan began by requesting the court to extend the deadline for Aadhaar linking. The CJI promised to hear that argument when Attorney General was present.

Thereafter, Mr. Datar began laying down the key contours of his challenge:-

•    The Act should not have been passed as a money bill.

•    Even if the Act was upheld, it couldn’t go beyond subsidies.

•    The Aadhaar – PAN judgment (Binoy Visvam v UOI) should be revisited in light of Right to Privacy judgment.(Puttaswamy v UOI)

•    All Notifications under S.7 of Aadhaar Act, PMLA Rules and Sec 139AA of Income Tax Act were under challenge.

•    All actions before the passing of Act couldn’t be saved as they were outside the ambit and in violation of numerous court orders.

Mr. Datar cited the Rules under the PMLA (Prevention of Money Laundering Act) that made Aadhaar-bank account linking mandatory and a prerequisite for opening a bank account. He argued that the RBI Master Circular gave a choice of six IDs to open a bank account which conflicted with the PMLA Rules, which made Aadhaar mandatory. When stringent due diligent and KYC norms were followed when an account was opened, why was getting and using an Aadhaar ID mandatory? He cited Rule 9 of the PMLA which required that the ID be submitted within 6 months to prevent accounts from being made non-operational. He added that this completely disregarded the Supreme Court orders which said that Aadhaar was voluntary and it also impeded people’s access to money, amounting to a deprivation of property under Art 300A.

On the grounds of equality, he contended that this statute violated all 3 tests of Article 14 – intelligible differentia, lack of valid classification as it treated persons who were unequal as equal, as well as arbitrariness. Justice Chandrachud pointed that only PMLA Rules have this implication and not the Act, to which Mr. Datar replied that Sec. 57 of the Act was the enabling provision through which Aadhaar was being made mandatory for any service including Banking operations. So, the arguments held for both PMLA Rules and Aadhaar provisions.

He placed reliance on Lal Babu Hussein Case, where the Supreme Court held that Electoral Officer asking residents of a particular area en masse to prove their identity despite having electoral calls was unconstitutional.  He said that the State made the similar assumption, that all identity proofs except Aadhaar were fake.

He contended that what was a right under one Act (i.e. Section 7 of the Act making the Aadhaar voluntary) could not be a duty under another Act (i.e. PMLA mandating Aadhaar linking) and this amounted to manifest arbitrariness.

The matter will be next heard on 7th March 2018.

(The post will be substantiated by a detailed report)

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