#Aadhaar hearing to resume. ASG Tushar Mehta to continue his arguments. Bench assembles.
TM: Wants to place reliance on Para 92 of the Binoy Viswam judgment as reported in 2017 7 SCC 59.
Says the question of whether this law could have been passed by parliament is no longer open after Binoy Viswam when it clearly says 139AA is fully valid on that point.
Says the question of whether this law could have been passed by parliament is no longer open after Binoy Viswam when it clearly says 139AA is fully valid on that point.
TM: Only thing open after Binoy Viswam is the challenge to Aadhaar under Article 21.
Continues reading Binoy Viswam that deals with how interim orders were passed when Aadhaar Act did not exist and did not preclude Parliament from enacting 139AA.
He next reads the paras 103 and 104 of Binoy Viswam which found rational nexus of 139AA with the objdct sought to be achieved.
TM says that is the facet of proportionality.
TM says that is the facet of proportionality.
TM: Balancing of interests is also a facet of test of proportionality.
TM: Want to point out the gain to the nation because of Aadhaar.
TM: Want to read Modern Dental Justice Sikri's judgment quoted in Binoy Viswam.
TM: four tests of proportionality of a law.
1. Public purpose.
2. Measures have nexus with the purpose.
3. Necessity of the measure.
4. No lesser alternative measure available.
1. Public purpose.
2. Measures have nexus with the purpose.
3. Necessity of the measure.
4. No lesser alternative measure available.
(2. Measures have rational nexus to the purpose)
TM: Measure to be justifiable as reasonable and necessary in a democratic society.
(Me thinks: TM has forgotten which side he is arguing for?)
(Me thinks: TM has forgotten which side he is arguing for?)
TM: Binoy Viswam tested proportionality and upheld the provisions.
TM: Reads the parts in Binoy Viswam discusses inequality has increased in India in arguing for necessity of a measure like 139AA.
TM: Reads the parts in Binoy Viswam discusses inequality has increased in India in arguing for necessity of a measure like 139AA.
TM reads parts in Binoy Viswam that extracts from "An Uncertain Glory: India and its Contradictions" written by Prof. Amartya Sen and Prof. Jean Dreze on widening inequality in India.
(Recall that Prof.Dreze has filed affidavits in this case against Aadhaar!)
(Recall that Prof.Dreze has filed affidavits in this case against Aadhaar!)
TM now reads parts in Binoy Viswam that quote the Shah Committee (SIT on Black Money) recommendations.
Reads US Court of Appeals judgments which suggest frisking or highway check points do not raise any individualized suspicion of criminality. This in response to Petitioner arguments that Aadhaar is a general warrant of search without reasonable susipicion of individual wrongdoing
DYC J says offences against terrorism or public health are at a different footing than fiscal statute. Proportionality will be of different nature.
TM says he is not arguing on proportionality now..but only to suggeat just because information is collected,...
TM says he is not arguing on proportionality now..but only to suggeat just because information is collected,...
...it does not mean a presumption of criminality.
TM drops the figure that 33000 untaxed money has been found by PAN AADHAAR linking even on voluntary basis.
33000 crore!!
Bench rises for lunch.
Bench rises for lunch.
Hearing continues. TM labours on the 33000 crore rupees taxable transactions reported.
In Court..but not able to tweet because of iffy signal again. @gautambhatia88 and @SFLCin are.
