Thread by @gautambhatia88

Aadhaar Day 27, Session 2. Tushar Mehta continuing for the UIDAI.

TM: The immediate benefit from compulsory linking of PAN is that it helps the IT department in tracking tax evasion.

TM: Analysis from linking shows that many people do not quote PAN for large transactions. 1.6 crore such transactions have been identified in the last two years. PAN of the person was there in the database but not in the form that he filed.

TM: 33K crores worth of transactions have been detected, and this is possible only through linking of PAN and Aadhaar.

TM says that this clearly meets the test of proportionality.

TM says that the Court should not second guess the legislature's assessment of proportionality unless it's shocking and needs no argument.

TM says that in a clash between privacy and other fundamental rights, the Court should look at the larger public interest.

TM is summing up the test of proportionality as laid out in the right to privacy judgment.

TM says that as per the right to privacy judgment, prevention of crime and safeguarding revenue are legitimate aims of the State.

TM is reading out some judgments of the Supreme Court on proportionality. His first judgment is PUCL v Union of India, which is on disclosure of assets by political candidates and their spouses.

TM says that in this case, it was held that the right to privacy of the spouses of political candidates was outweighed by the public interest.

TM reads out the part of the judgment that said disclosure served the right to information of the citizens, and that the right to privacy had to be subordinated to the right to information, because it served the larger public interest.

TM reads another judgment, Narayan Dutt, on DNA testing to prove paternity.

TM says that in this case, even an extremely invasive procedure was upheld by the Court, and the right to privacy was subordinated.

TM now reads out the SC's 2016 judgment upholding criminal defamation, which was authored by CJI Dipak Misra.

TM says that in this case the SC has held that the nature of social control has to be borne in mind when considering reasonableness.

TM reads out the part of the judgment that talks about "qualified civil liberties."

Will post links to judgments later. TM is arguing too fast to keep up.

TM says that this case is about the right to privacy of the individual versus the need of the nation.

TM says that it is the duty of the Court to strike a balance to preserve values. (still quoting from the criminal defamation judgment)

TM says that the question is whether the legislature, while exercising its power of choice, has excessively infringed upon rights. In this case, that has in no way happened. TM quotes Justice Sikri's judgment in the Modern Dental case.

TM says that a law is proportionate if it has a legitimate purpose, has a rational connection with the goal, and is necessary.

TM says that all these conditions are fulfilled. The legitimate purpose is fighting income tax evasion and protecting the revenue base. It is necessary as has been shown from the facts. And there is a clear rational connection.

TM says that the right to extend my fist stops where your nose begins. The legislature decides this question. If the legislature stops me from moving my fist, that is disproportionate. But it is the legislature's prerogative to decide whether it is 1 inch or 1 foot from your nose

TM reads out an American judgment about urine testing for drugs.

TM says that this is the American context of privacy and state interest.

TM comes to the European Convention of Human Rights.

TM says that the European Court of Human Rights in James v United Kingdom, it was held that compulsory transfer of property could in some circumstances be upheld as promoting the public interest.

TM says that ECHR has held that compulsory transfer of property in the public interest can be permissible if it is in the public interest.

Sikri J says that judgments dealing with property stand on a different footing.

TM says that in that case, he will skip this and move on.

TM comes to the position in the UK.

TM says that the legitimate State aim is very important.

Sikri J says that nobody is disputing that.

TM says that some of the petitioners have tried to argue that the relevant standard is that of compelling state interest, but that is not required. Only a legitimate interest is enough.

Judges repeat that nobody is disputing this point.

TM says that the requirement of necessity does not require me to show that a law is indispensable to serve public interest. I just have to show that there is a necessity.

TM says that the test is not that the prohibition is least restrictive. He says that the courts in the UK have accepted that the State doesn't have to show that it's infringement on rights is least restrictive.

TM is reading out a judgment from the UK. He says that what is required is a balancing exercise to further public interest. It need not be least intrusive.

TM says that a measure can be proportionate even if it is not the least intrusive infringement of rights.

TM cites the UK judgment of Smith, which repeats that something can be proportionate without being the least intrusive infringement on rights.

This was a case about compulsory acquisition of property.

TM says that as long as the government has an acceptable view with regard to stopping tax evasion and protecting revenue, it doesn't matter if the method adopted is not the least intrusive.

TM says that his last argument is on linking of bank accounts to Aadhaar under the Prevention of Money Laundering Act.

TM says that global money laundering as per UN is to the tune of 1 trillion dollars.

For the removal of doubts, TM is Tushar Mehta, Additional Solicitor-General, arguing for the UIDAI.

TM says that money-laundering is a global menace, and India has reacted like other countries have reacted.

TM reads out the Basel Committee Report, and says that the point is to ensure that the bank account is actually opened by the person in whose name is is.

Sikri J says that there is no dispute that money laundering is a problem. He asks TM to explain why Aadhaar is required for bank accounts and phones.

TM says that there many loopholes that can be plugged.

TM is now reading out the scheme of the PMLA rules. He says that Banks have to verify identity under these rules.

TM says that the purpose of the rules is to effectuate this.

TM is showing a chart to the bench. He says that there are layers of shell companies, and it becomes impossible to find out who the real beneficiary is.

Please find below the chart.

Sikri J asks TM why he's showing this.

TM says that it is to show the larger public interest.

Bench rising.

To continue tomorrow. TM will finish by lunch tomorrow. Then Rakesh Dwivedi will close the case for the State.

Cheers.