Even as the Supreme Court continued to hear petitions against making it mandatory to connect Aadhaar to PAN cards and hence compulsory in filing taxes, advocate and litigation expert Shyam Divan on Friday continued his exposition against the move.
As tweeted by lawyer Gautam Bhatia, Divan continued his argument against the move by the Centre saying an individual citizen of the country had the right to limit what they were putting out in this world. He also argued that Aadhaar coerced children, even before they reached the age of consent.
Mr Divan: An individual must be allowed to limit what he or she puts out to the world. It is her autonomy.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: This principle of informational self determination was developed by the Federal Constitutional Court of Germany.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: The basis is dignity.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Divan also told the court that informational self-determination was essential for the free development of the individual and for a free democratic society.
Mr Divan: the individual decides about their data - not the govt, not the data banks.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Pointing out that 34,000 enrollers had been blacklisted, Divan told the apex court there was no quality control when it came to third parties and the government had no contact with them whatsoever.
He said that the registrar's control over biometric data of individuals created a laughable situation.
Mr Divan: the only control the UIDAI has with them is a memorandum of understanding.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: The Registrar can retain biometric data. This is "devastating".— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: the powers given to the registrar for control over personal data creates a laughable situation.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: This is a complete destruction of personal autonomy. A debasement of my right to informational self-determination— Gautam Bhatia (@gautambhatia88) April 28, 2017
Arguing agains the legislative competence of Aadhaar, Divan said, "The Union has no competence to nationalise my fingerprints. Eminent domain is confined to land. Not to the body of the individual."
He added, "Consequently, you can do this only in narrowly tailored circumstances. If the State can have control over your body to this extent - taking your data and centralising it - that reduces us to vassals. At best, the State can act as a trustee or a fiduciary over this data, which is our personal property. "
Warning against the consequences of personal data being present online, he said:
Mr Divan: I can change my password. I cannot change my fingerprints.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: In a world with this identity theft - in fact, the govt itself is publishing this data online - why compel me to part with this?— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: Can a trustee compel the beneficiary to part with this?— Gautam Bhatia (@gautambhatia88) April 28, 2017
Citing Humpty Dumpty's quote from Alice In Wonderland from Lord Atkins' immortal dissent in Liversidge vs Anderson, 1942 AC 206, he said, "Please do not allow the govt to canvas a Humpty Dumpty interpretation. when we say it's voluntary, it means compulsory. The only authority for that is Humpty Dumpty."
To which the bench said:
Justice Sikri: There is a lot of wisdom in Alice in Wonderland.— Gautam Bhatia (@gautambhatia88) April 28, 2017
Appearing before a bench of Justices A K Sikri and Ashok Bhushan, Divan then went on to point out how Aadhaar even coerces children:
Mr Divan: How can you yoke children into this even before they have reached the age of consent?— Gautam Bhatia (@gautambhatia88) April 28, 2017
Mr Divan: There are potential impacts on the right to movement, to trade, and to association.— Gautam Bhatia (@gautambhatia88) April 28, 2017
The Union of India, which is being represented by Attorney General Mukul Rohatgi, will reply to the court regarding this matter on Tuesday.
Divan, in his arguments on Thursday had said "the Aadhaar project alters the relationship between the State and the individual. It is an issue of civil liberty."
"How can you engraft a provision into the Income Tax Act making it mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary," he asked.
On bodily integrity, he argued: "My fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life. As long as my body is concerned, the State cannot expropriate it without consent, and for a limited purpose."
The Centre, had made it mandatory for quoting of Aadhaar or enrolment ID of Aadhaar application form for filing of I-T returns and making application for allotment of PAN with effect from July 1, 2017, through Section 139AA of the the Finance Act, 2017.
Earlier in the week, apex court had asked why lawmakers did not object to make Aadhaar mandatory. "542 persons are sitting in Parliament, why do they not object to it? If they are not objecting, why should we go into it... They cannot be bound by it. It cannot preclude Parliament from enacting a statutory provision," the bench had said.
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