Thread by @prasanna_s

#Aadhaar hearing. Arvind Datar, Sr. Advocate appearing for MG Devasahayam and others, petitioners.

Briefly Shyam Divan and Arvind Datar press for interim directions. CJI promises to hear once A-G is here.

A-G is now here. But APD has started arguing.

He says he challenges Bank Aadhaar linking. He says he challenges all notifications under Section 7, PMLA Rules, Section 139AA of IT Act.

APD showing how the new PMLA rules are contrary to RBI circulars issued earlier.

Justice bhushan wants to know how does that make the circular bad in law.

Justice DYC asks if RBI is before the Court.

APD answers in the affirmative.

APD refers to the logic of the previous RBI master circular and says it occupies the field in relation to KYC.

APD now reads the PMLA Rule that makes Aadhaar mandatory to be linked to bank account and a mandatory prequisite for opening a new account.

APD points to how Rule also makes it mandatory to collect Aadhaar numbers of managing personnel of companies and trusts!

Court rises for lunch.

Hearing resumes. APD continues reading the PMLA Rule that made aadhaar bank linking mandatory.

Calls the provision making account inoperational as draconian.

APD talks about how the Rule is ultravires of Aadhaar Act ...which is completely a voluntary scheme. Also reference to SC orders.

From delivery to deliverance aadhaar.

DYC J refers smilingly to Aadhaar for marriage certificate when APD explains how it is necessary from cradle to grave.

APD gets back to how the Rule is ultra vires aadhaar act.

Aadhaar Act gives a choice of Aadhaar. PMLA rule unconstitutionally classifies people based on people's legitimate choice and discriminates between them. That is impermissible under the law.

(A-G is not present in Court)

APD says how by exercising a perfectly statutorily valid choice of not taking Aadhaar, I run the risk of his bank account becoming inoperable.

APD says very rarely do we find a statute that violates every possible facet of article 14. This PMLA rule is one such.

Classification. Equal Treatment. And manifest arbitrariness tests.

APD wants to develop the article 14 argument. Begins saying how there is absurdity in saying everyone in India is a sea of fakes but for aadhaar!

Reading Lal Babu Hussein case ..1995 3 SCC 100. A case where SC said Electoral officer asking residents of a particular area enmasse to prove their identity was unconstitutional.

In that case, the EO went on the assumption that all inhabitants of a particular area were foreigners...notwithstanding their name appearing in earlier electoral rolls.

CJI paraphrases the argument to ask if the entire argument is just about not needing a repeat process of identification of there is an existing identification norm such as KYC norm.

Discussion between CJI and DYC J.

APD then wants to read Nariman J judgment in Cellular operators (call drops case).

Before that DYC J wants APD to refer to Section 73 of PMLA. And whether the Rules are intra vires that provision.

APD: The Rule here has no nexus witb the Act. PMLA has nexus with bank accounts only for the purpose of 'proceeds of crime'.

APD says what is a right under one act cannot be a duty in another Act. Thats manifest arbitrariness.

APD : going on to Cellular operators case, how SC struck down call drop charges because that regulation was inconsistent with the basis of an earlier regulation that recognised call drops to not be always an operator fault.

DYC J responds saying that that judgment arose in the context of two delgated legislations under the same power. But in our case one circular under Banking Regulation act, the other under PMLA and the other under aadhaar act.

APD cites another precedent. Sri Krishna Sugar mills...where two different laws were involved.

APD says how RBI circular in this case refers to section 73 and Rule 9 of the PMLA maintenance of record Rules. Says cellular operators judgment is squarely applicable in this case.

DYC J points out how under 2017 Rules authority to regulate bankin records is taken away from RBI and assumed by central government.

APD pressing for interim orders. Declined for the moment.

( May be at the conclusion of petitioner arguments.)

CJI seems to have some impatience on the length of petitioners arguments.

Court rises for the day.