Thread by @SFLCin

#Aadhaar final hearing- Day 15: Bench assembles. Arvind Datar continues for petitioners.

AD: Points out that the fact if you don't give Aadhaar, your accounts will become inoperable. Says it can't be called consent. There's no option to opt out.

AD: Says Aadhaar was preceded by NIA bill. Reads out the statement of objects, long title & Preamble of Aadhaar Act.

AD: Says that Aadhaar Act was only for the purpose mentioned in the objects and using it for any other purpose would be invalid.

DYC J. Says that the moment you extend Aadhaar to private entities, the money bill aspect will be gone.

AD agrees.

AD: Says that Act was passed as a money bill without any regard to the recommendations of Rajya Sabha.
Points out the amendments suggested by the Rajya Sabha to the bill.

AD: Points out, w.r.t. clause 57, that Rajya Sabha had recommended the deletion of this clause.

AD: Says that Section 57, which was sought to be deleted, the recommendation was rejected by Lok Sabha.

AD: Says that had it not been a money bill, it would go to Rajya Sabha, recommendations would be considered, and Section 57 would not be there. An opt out clause would be there.

AD: Defines consent and free consent as per the Contract Act. Says consent in this case is vitiated.

AD: Says that if one party is in dominating condition, it is not a free consent which is the case in this matter.

AD: Hands over a reading- Records Computers and the rights of citizens by the US department of justice. Reads the relevant paras.

AD: Reads out extracts where SSN as a universal identifier was criticized.

AD: Reads that it shall be unlawful for any federal agency to deny any benefits to which an individual is entitled for refusal to show the SSN.

AD: Says that to enroll or not to enroll is my choice. It is my decisional autonomy to part with or not to part with my personal information.

AD: Says that today it is not possible for a person to survive without an Aadhaar. It has its intrusion from birth to death of an individual.

AD: Reads Section 56 of the Aadhaar Act focusing on words 'any law'.

AD: Says that if the law means delegated legislation, then this section has to go for delegating essential functions- excessive delegation.

AD: If 'any law' means primary legislation, then it would have to go for the violation of Ar. 14 and 21.

AD: Says that I can't a start a business without a GST number for which I have to give Aadhaar number.

DYC J asks what is the compelling state interest in case of private entities asking for Aadhaar.

AD: Says that any purpose under S 57 means all purpose and not limited purposes.

AD: Regarding definition of biometric info says that what all includes biometric information can't be left to the regulator. It has to be decided by the Parliament.

AD: Points out Section 7. Says that to get Aadhaar, other approved IDs are needed. However, once I get Aadhaar, those IDs are rendered ineffective.

AD: says that the decision in Swaraj Abhiyaan case, the ration card which is mandatory to get food supply, should be substituted with valid ID.
Says that primary and secondary evidence concept is that if primary evidence is not available then you can show secondary evidence.

AD: Goes to Section 139AA of the Income Tax Act. Also refers to the Binoy Viswam (Aadhaar PAN link) judgment delivered last year.

AD: Goes to para 118 of the judgment.
Says that after puttaswamy judgment, it is the personal autonomy of the person whether she wants to take Aadhaar or not or even if she has aadhaar- whether she wants to link Aadhaar or not.

AD: Points out that AG during that case had stated linking Aadhaar with PAN is the only foolproof method to ensure there are no fake PAN.
Tells about the case where a person entered 12 zeroes while filing income tax returns, his returns were accepted and refund processed.

AD: Says that if your purpose is to eliminate fakes, it need not be perpetual. After achieving the purpose, my data should be returned. What is the need to keep it perpetually?

AD: Says that far-reaching circulars are issued infringing Part III rights.
Refers to Ram Jawaya Kapur case.
Says that when it is necessary to encroach upon rights, a legislation is needed. Can't be done via circulars.

AD: Says that all these rules were passed in 2010 when NIA bill was under consideration.
Says that if on the same matter, an active bill is pending in the Parliament, executive can't excercise power as per Ar. 73.

AD: A savings clause cannot save the executive action violating fundamental rights.

AD: Says there should be a direction for the deletion of data.

Bench rises for lunch. To continue at 2:30 pm.

Court reassembles after lunch. Arvind Datar will complete his submissions for the petitioners, followed by Senior Advocate P. Chidambaram, who will begin his arguments on Money Bill.

AD: Takes the court through the interim orders passed in the case.

AD: Points out that in Gujarat, one cannot apply for NEET entrance exam without production of Aadhaar, last date being 9 March. Saya that it is a clear violation of the interim orders of the Court.

AD: Says that despite the orders of the SC, nobody is following them. It is a case of contempt of Court. Brings the attention of the court to the interim order passed on 15th December, 2017.

AD: Last submission: to consider the possibility of including guidelines for deletion of data and for opting out of Aadhaar.

AD: Concludes by quoting a para from Anwar Ali Sarkar judgment on Ar. 14 & 21 about motives being just, fair and reasonable.

Attorney General says that it has not authorised CBSE to make Aadhaar mandatory for entrance exams.
Further says that those interim orders of the court can apply only to pre-Act actions and not after the Act came into force.

Further discussions on Aadhaar being made mandatory for NEET. Bench says that any such authority has the right to ask for some kind of identification but not exclusively Aadhaar.

Bench says that we will consider the relief for this particular case at the end of Mr. Chidambaram's arguments.
Petitioners press for relief in case of Aadhaar-bank account linking as well.

DYC J. says that we cannot extend the dates for linking at the last moment because the financial institutions will be in a state of uncertainty till then thinking 30th to be the last date for linking.

P. Chidambaram commences his arguments on Money bill.

PC: Questions if one can bypass the scrutiny of Rajya Sabha by terming a bill as Money Bill.

PC: Reads Article 107 pertaining to the inteoduction and passage of bills.

PC: Further reads Article 117 of the Constitution relating to the provisions on financial bills.
Explains when a bill is a financial bill. Says it can only be introduced in Lok Sabha.

PC: Now comes to Article 110. Says that money bill is a subset of financial bill. Distinguishes between money bill and financial bill.

PC: Says that a money bill cannot be introduced in Rajya Sabha. In this case, Rajya Sabha becomes only a recommending house. They have no legislative power but only recommendative power.

PC: Says that money bill is a very special kind of bill. Therefore, in the light of denudation of the powers of Rajya Sabha and deprivation of powers of President, these provisions should be construed very narrowly and strictly so that nothing escapes in the guise of money bill.

PC: Points out the difference between Ar. 117 and 110- money bill and financial bill. Says that only substantive difference barring the procedural aspects is the use of word 'only' and hence, this word should be given greatest importance.

Clarification: DYC J. said that we cannot leave the extention of dates to the last moment, meaning thereby that interim relief for extention of linking should be granted much before the last date.

PC: Reads out judgments on the interpretation of word 'only'.
Says even if there's a small intrusion, the word 'only' gets diluted.

PC: Refers to articles which make use of other words thus clearly excluding the jurisdiction of the court. Reads and gives example of Ar. 74(2), 163(2), 163(3) & 363 on interpretation.

PC: Reads Article 103(1) on the disqualification of members.Even in that case, the provision says that the decision of President shall be final.However,refers to the euphemism wherein it is not actually the decision of President but of the Election Commission which will be final.

To give context, PC is on the point of finality as to who decides whether a bill is a money bill or not. Ar. 110 (3) says that the decision of speaker of the House of the People (Lok Sabha) shall be final.

Court passed an interim order on the CBSE NEET entrance exam and all other All-India examination that the applicants need not produce Aadhaar number for applying. They can produce any alternative means of identification including Ration card, driving licence, etc.

Court also directed that this order be communicated to CBSE for uploading on its website.

Court will look into the extension of deadlines of deadlines after PC has finished his arguments on the next date.

Court rises. Hearing to continue on Tuesday, 13th March, 2018.