Thread by @gautambhatia88

Aadhaar Day 15. Arvind Datar continues the case for the Petitioners.

Datar says that Chidambaram will argue the issue of money bill in the afternoon. Datar hands over written submissions on the topic of money bill and requests the Court to go through it, because he has been asked to finish by 1 PM.

Datar briefly indicates the distinction between Money bills and appropriation bills, and says that at the highest, Aadhaar is a financial bill that requires Rajya Sabha approval.

Datar discusses how Aadhaar has been made mandatory for mutual funds. He reads out a letter he has received that contains the words "I hereby give my consent..." followed by all the requirements that follow.

Datar says that it's not consent in any meaningful sense when it takes the form "you consent or else your bank accounts will be blocked."

Datar says "is this what consent means in a democracy?"

Datar asks what making Aadhaar mandatory for insurance policies has to do with the PMLA.

Datar says that even if the Court was to uphold Aadhaar, his alternative submission is that the Aadhaar Act is limited to subsidies taken from the consolidated fund of India, and can't be made mandatory for anything beyond that.

Datar reads out the Statement of Objects and Reasons of the Aadhaar Act to substantiate this point.

Bhushan J says that Section 57 of the Act allows it to be used for other purposes as well, like driving license.
Datar says that no law says that not having a driving license will disentitle you from getting an entitlement under an entirely different scheme.

Chandrachud J says that another argument could be that once you bring in the private sector through Section 57, the nexus with money bill is lost.
Datar says that this is exactly his next point. He comes to Section 57.

Datar says that as a matter of fact, the Rajya Sabha specifically recommended the deletion of clause 57.

Datar reads out a speech in the Lok Sabha where it was specifically pointed out that S 57 goes far beyond the specifications of a money bill.

Datar quotes the importance of bicameralism in the constitutional scheme.

Datar says that if it was not a money bill, and it had gone to Rajya Sabha, there would have been an opt out clause, and S 57 would have been deleted.
Datar says that at its highest, consent is only limited to the issue of subsidies.

Datar says that from 1872, in Indian law, the word consent is legally understood by referring to the Indian Contract Act.
See section 13: advocatekhoj.com/library/bareac…

Datar says that a contract is not free if one party is in a position of overwhelming dominance over the other.

Datar reads out the debates in the US around the social security number, which warned against nationwide automated personal data systems.
Datar reads out extracts from US Senate Debates, where senators spoke against SSN as a universal identifier.

Datar: "It is time to stop this drift towards a society in which a person is reduced to nothing more than a number."

Datar says that these debates happened in the American Senate in 1974. After this, the US Congress amended the social security Act which made it unlawful to deny any individual any entitlement just because he refuses to reveal his social security number.

Datar says that worldwide there is a recognition of the dangers and there is a move towards limiting data, while Aadhaar is going the opposite way.

Datar says that his next submission is that to enrol or not to enrol in Aadhaar is an exercise of an individual's delusional autonomy. To decide whether or not to part with personal information is a fundamental choice under the Constitution, affirmed by the privacy judgment.

Datar says that that basic principle is being violated because today, it is virtually impossible to survive in society without an Aadhaar. It is for the Court to decide whether this manner of coercion is permissible in a rule of law society.

Datar says that the consent provisions of the Aadhaar Act are rendered meaningless when you say "please consent, or we'll close your bank account on March 31."

Datar says that Section 57 amounts to excessive delegation of essential functions.

Datar says that to the extent that Section 57 is limited to primary legislation, it is hit by Articles 14 and 21.
Datar says that it's shocking that Section 57 allows even a private contract to override the provisions of the Act.

Chandrachud J asks what compelling state interest could there be for Section 57 authorising the private sector in the context of mandatory Aadhaar?

Datar takes examples of various temples making Aadhaar mandatory to enter. Datar asks "where are we going?"

Datar says that "any purpose" under Section 57 can't mean "all purposes."

Datar says that the words "as specified by regulations" have been used some twenty-six times in the Act. He says that when you're talking about issues like core biometrics, it can't be left to regulations.

Datar says that Section 7 of the Aadhaar Act, that allows it to be made compulsory for subsidies, is manifestly arbitrary. He says that this is because to get my Aadhaar I have to show one of eighteen approved proofs of identity, including ration card, but the moment +

+ I get an Aadhaar, all those proofs of identity become effectively invalid.

Datar: You are making the livelihood of people dependent on a machine, that works on a probailistic basis. The right to life is being made contingent on an inherently faulty machine.

Datar cites the judgement of the Supreme Court in Swaraj Abhiyan's judgment, that directed that in drought affected areas, the requirements of a ration card must substituted by another valid proof of identity.

Datar says that the Regulations providing for deactivation and cancellation of Aadhaar have no procedural safeguards. He says that the regulating stating that if a child's details are not updated in two years, her Aadhaar will be deactivated, is "utterly obnoxious."

Datar comes to the issue of income tax and the Binoy Viswan judgment. He says that Binoy Viswam must be reconsidered in the light of the privacy judgment.

Datar says that the AG argued that Aadhaar is so foolproof that it will weed out all frauds. In fact, it turns out that it's so extraordinarily foolproof that you can put twelve zeroes, and you'll get your income tax return accepted, and a refund to boot.

Datar says that the compulsory linking of PAN is entirely disproportionate.

Datar says that at its highest, deduplication can be a one time exercise. Why do you need permanent linkage to achieve that purpose?

Datar says that his last argument is about pre-Act actions. He says that delegated legislation cannot be subsequently ratified if it violates fundamental rights.

Datar says that what is most shocking about Aadhaar is that despite court orders, you go on violating and violating and violating.

Datar says that, in conclusion, there must be guidelines for deletion of data.

Bench rises for lunch. Datar will take five minutes after lunch to complete.

Cheers.