Thread by @SFLCin

#Aadhaar (Day 26) hearing to begin shortly.

Attorney General, K.K Venugopal resumes his submissions. He's likely to finish today.
Explains retrospective saving of Acts.

AG says Section 59 of the Aadhaar act provides retrospective effect.

AG cites cases to show that a particular action can be validated by a subsequent Act, as it happened in the case of #Aadhaar.

AG reads out the third version of the Aadhaar enrollment form. reads out yhr content and says it's free and voluntary and has provisions for taking informed consent.

J. Chandrachud: The first two forms did not have any reference to biometrics. It was only inserted in the third form.
State argues that the first two forms were hardly used because the government had only mandated enrollment of 1cr individuals.

AG says that the CBI had gone to Bombay high court to obtain biometrics in connection of a rape, since UIDAI had refused to provide them as biometric data cannot be shared without the individual's consent.

AG reads out from Justice Chandrachud's part of the Puttaswamy judgement about "reasonable expectation of privacy".
AG says that the state has no interest in collection of biometrics except for the benefit of the individual himself. Emphasizes that invasion is privacy.

AG: when there was no right to privacy, the government acted in a bonafide manner when they enacted Aadhaar. Therefore that action cannot be said to be void by retrospective action.

J. Chandrachud: the question of privacy was irrelevant in MP Sharma. Only the first part of kharak Singh affirmed that there's a right to privacy. The subsequent judgements that affirmed privacy relied on the first part of kharak Singh. AG does not agree with this interpretation

Correction: AG reads out from Justice Chandrachud's part of the Puttaswamy judgement about "reasonable expectation of privacy".
AG says that the state has no interest in collection of biometrics except for the benefit of the individual himself. Emphasizes that invasion is minimal

There's some discussion on excessive delegation.

Bench rises for lunch. AG will continue after lunch.

AG resumes his submissions. Cites some cases on excessive delegation. J. Chandrachud remarks that section 2(g) of the Aadhaar act is not so much a question of delegation of legislative power but more about proportionality.

ASG Tushar Mehta starts his submissions. He's appearing for UIDAI.

ASG: The challenge to section 139aa was examined by this court. Apart from right to privacy, all other aspects were considered.
In Puttaswamy, all nine judges have affirmed that right to privacy is not absolute.

ASG: J. Chandrachud laid down the three tests under which privacy can be invaded in particular cases. Five out of nine judges have upheld the principles of legitimate state interests and proportionality.

ASG says that a legislation has to pass all four tests to be valid. Three laid down in Puttaswamy and also the test of manifest arbitrariness (Shayra Bano judgment)

ASG: All these tests were examined in binoy viswam although in the context of Article 19.
He says that another test will be the test of larger public interest.
The bench thinks that satisfying legitimate state interests is enough to prove larger public interest.

ASG: All the demographic information that is required under Aadhaar was already being taken since 1989 under section 139a of the income tax (for obtaining PAN)

ASG says left hand thumb impression was also taken for people who can't sign. Bench says there's no collection of biometrics and there's no authentication taking place.

ASG: Those who have already taken PAN do not have any legitimate interest in withholding information that they have already provided for obtaining PAN.
ASG says that Aadhaar will prevent duplicate PAN nos.

ASG says that 11.3 lakh cases of duplicate PAN were found. Says that PAN can be misused for the purpose of tax evasion, black money , setting up shell companies etc. He says that Aadhaar will ensure that one person has one PAN by interconnecting the PAN-aadhaar database.

ASG says this was recommended by the Shah Committee SIT on black money.

ASG says even companies need pan cards. And the documents used for obtaining PAN can be easily forged.
Therefore, Aadhaar with the use of Biometrics will prevent that.

ASG emphasizes that fake PAN cards are used to create shell companies abroad and Aadhaar can make sure that this does not happen.

ASG says uniqueness of pan is important. Deduplication test needs to be conducted. Demographic way of verifying de duplication is not fool proof. Hundred percent verification is possible with Aadhaar as biometrics and Iris scans will be used.

ASG gives an example of how a lady created 3000 bogus demat accounts by obtaining people's photographs.

ASG is still talking about PAN and how it can be duplicated.

ASG says that there's a huge gap between the no.of PAN holders and the entire tax base.

ASG: Finance minister has described financial frauds in his Feb speech. Also our tax collection is very low in our GDP ratio. We are a largely tax non compliant country and the burden of people who evade taxes falls on honest tax paying citizens

ASG talks about India's international obligations under FATCA and CRS

17.4 cr out of 36 cr tax payers have already linked their Aadhaar with pan, says ASG. Even transgenders are included without having to disclose their gender.

ASG: my lords have already tested section 139aa on the four tests.
J. Bhushan: You'll have to prove there's no violation of privacy.
In substance Puttaswamy and Shaira bano retrospectively ratifies what was held in binoy viswam.

Bench rises for the day. ASG will resume his submissions tomorrow.