Thread by @SFLCin

#Aadhaar (Day 27) hearing to begin shortly.

ASG Tushar Mehta will resume his submissions from yesterday. He's appearing for UIDAI.

ASG: The argument that the Aadhaar act was made in violation of interim orders of the SC has already been refuted in the case binoy viswam (Aadhaar PAN linking judgment)

ASG: Only the challenge to article 21 is open with respect to Aadhaar. All the other aspects have already been dealt with in binoy viswam.

ASG: It has already been proved that Aadhaar linking with PAN will help curb money laundering and black money, and prevent tax evasion. This question is not open to challenge anymore as it has already been decided by this court.

ASG reads para 103 and 104 of binoy viswam judgement that says that there's a rational nexus between s. 139aa and the object sought to be achieved. He says that this "rational nexus" is a facet of proportionality.

ASG emphasizes that biometrics will help curb the growth of shell companies. Says this is again a facet of reasonableness and proportionality.

ASG is reading exceprts from binoy viswam judgement on reasonable classification.

ASG says that balancing of interests is also a facet of proportionality, which was propounded in the judgement of modern dental college.

ASG quotes Aharon Barak's ( Israeli jurist) definition of proportionality:

1. There must be public purpose
2. Rational nexus.
3. Necessity of the measure.
4. No other alternative measure is a available.

ASG reads paras 124 and 125 of the binoy viswam judgement which answers whether Aadhaar PAN linking is in public interest and satisfies the test of proportionality and reasonableness.

ASG reads the part in the judgement that talks about inequality and corruption in India that prevents benefits from reaching the rightful beneficiaries.
Says that India is far behind sustainable development when compared to China and other South Asian nations.

ASG mentions that Aadhaar will help law enforcement curb terrorism.

ASG now reads para 130 of the binoy viswam judgement.

ASG wants to answer the question whether the entire population can he treated as criminals for Aadhaar. Quotes an American judgment that said screening airline passengers is an administrative service. It's not to treat everyone as a terrorist but to safeguard the larger public

J. Sikri says that the facts in the American case cannot be compared to the facts in the present case of Aadhaar.

ASG quotes more judgements on the American fourth amendment (search and seizure)

J. Chandrachud doesn't seem convinced about the relevance of these cases in the present case of Aadhaar.
ASG says that he wants to show that whenever there is a statutorily allowed intrusion of privacy it does not mean there's presumption of guilt.

ASG says there's no random scrutiny of people in the name of Aadhaar. The exercise of linking Aadhaar with bank, phone etc is only done to weed out fake or duplicates.

Bench rises for lunch. ASG will start his submission on PMLA rules post lunch.

ASG: IT Dept uses third party information to identity cases of defaulters. Rule 114b requires quoting of PAN to file returns. A person can easily say that they don't have PAN and then evade taxes. Pan Aadhaar linkage will prevent this kind of tax evasion.

About proportionality, ASG says that
a statutory measure should not be excessive wrt to the object it seeks to achieve and the court will not look into the legislature's wisdom till it's shockingly disproportionate.

ASG is quoting the three prong test laid down in Puttaswamy and says Aadhaar fulfills all three tests.

ASG: the test of proportionality is applied, examined and recorded in binoy viswam.

ASG: If there's a competition between right to privacy and the right to information of a citizen, the former has to be subordinated with the latter for the sake of larger public interest.
ASG quotes PUCL v. UoI

ASG quotes Narayan tiwari v. Rohit shekhar related to DNA test wherein it was held that privacy is not absolute and can be invaded if there's a larger medical interest.
Quotes subramanian swamy case on the point of reasonable restrictions.

The fair needs of the society and the nature of social control has to be kept in mind when enforcing reasonable restrictions. He's reading from the criminal defamation judgment authored by CJI dipak misra.

Now quotes x v. Hospital z wherein privacy was upheld to be subordinate to right to information.
Balancing of fundamental rights is the constitutional duty of the case, ASG quotes from the criminal defamation judgment.

Quotes Om Kumar v. UoI: Limitations on fundamental rights are constitutional if the measures taken are necessary and proportional.

Generation of revenue, curbing black money and prevention of evasion of taxes is necessary and measures that need to be taken by the state for the same are proportional, says ASG.
The right to move your fist stops when my nose begins says ASG.

The fourth amendment does not safeguard all expectations of privacy, but only ones that are reasonable, quotes ASG from an American judgement.

AG is reading out excerpts from this case: en.m.wikipedia.org/wiki/Vernonia_…

ASG quotes James v UK in the context of property rights with respect to privacy.
Also says that the right to privacy in the European convention of human rights is not absolute and can be curtailed for the purpose of national security.

J. Sikri says that doctrine of proportionality in the context of property law is not relevant in this case.

Legitimate state interest is enough. No need to prove compelling state interest, says ASG.
Says the word 'necessary' is not synonymous with 'indispensable'. It only has to be proved that it's necessary for larger public interest.

ASG says if there's an overwhelming public interest then there's no need to apply the "least intrusive" test.

ASG: last point to discuss is prevention of money laundering.
PMLA has become a stringent law since 2013. The amended rules under PMLA mandate providing of Aadhaar to open an account.

ASG menace of hawala transactions and money laundering is a global concern. Quotes Basel committee report. Says many international organizations have formulated strategies to prevent money laundering.

ASG reads out the statement of objects and reasons of PMLA.
J. Sikri says there's no doubt that money laundering is a problem. The only question that needs to be answered is how Aadhaar will prevent money laundering.

ASG explains the scheme of PMLA and how it operates. Says it's not a toothless law anymore. The formation of rules flows from section 12(c) of the Act.

ASG cites section 73(j) . Says banks are mandated to verify identity of customers.

ASG is now quoting FEMA

Bench rises for the day. Will continue tomorrow.