A lawyer today opposed the seeding of Aadhaar with the Permanent Account Number (PAN) for income tax in the Supreme Court, saying in no way does it help in preventing financial frauds or curb black money. Arguing before a five-judge constitution bench headed by Chief Justice Dipak Misra, which is hearing a clutch of petitions challenging Aadhaar and its enabling 2016 law, the lawyer referred to various recent financial frauds including the Nirav Modi scam and said none of these could have been avoided by using PAN-Aadhaar linkage.
“Firstly, giant corporates, rather than individual players, have been the main actors in these scams. Secondly, black money is widely known to be stored by the corrupt in foreign banks which are beyond the reach of Aadhaar,” lawyer Gopal Sankaranarayanan, representing NGO ‘Centre for Civil Society’, said. However, the Supreme Court did not agree with his submission that Aadhaar was voluntary and said if a person wanted to avail subsidy benefits, then he or she will have to possess the 12-digit unique identifier.
The bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said “Section 7 of the Aadhaar Act is not voluntary. Someone who wants subsidies will have to have Aadhaar.” It also said that the provision of the Aadhaar law seeks to identify the beneficiaries who wanted subsidies but does not take away the other forms of identity.
At the outset, Sankaranarayanan said the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 as a whole “does not violate the fundamental right to privacy”. However, he said that certain provisions have to be read down so that the Aadhaar law as a whole can continue to serve its essential purpose.
Opposing the seeding of Aadhaar number with PAN cards under section 139AA of the Income Tax Act, the lawyer said it violated the fundamental rights of equality and life and personal liberty. “Individual Income Tax PAN holders (non-corporates)” are targeted by the State by making Aadhaar compulsory, he said, adding “with respect to financial scams, the problem was dummy companies, not individuals. Yet, the companies are not targeted.”
For the purposes of Income Tax Act, Aadhaar has been made mandatory and this cannot be held valid as there was neither “informed consent” of citizens, nor are funds withdrawn from the Consolidated Fund of India. This also does not pass the proportionality test, he said. “If the aim was curbing black money and preventing money laundering, then linking PAN with individual Aadhaar holders does not achieve that purpose. Therefore there is no proportionality,” he said.
On security of data, he said that security agencies of the US have shifted to “RSA-3072 level encryption” and the UIDAI is using PKI-2048 encryption which is less secure. He, however, said the encryption level, being used by the UIDAI, provided high level protection, but there was still a scope to make it more safe by promptly utilising the latest technology as it dealt with unprecedented levels of personal data.
The lawyer referred to constitutional scheme which said that if a penny goes out of the Consolidated Fund of India, the government was under an obligation to make a law. He said he trusted CIDR and felt that his data was safe and the safeguards, balances and limitations provided under the Aadhaar Act made it “proportional”.
Senior advocate N K Kaul, appearing for Authentication User Agency (AUA) and KYC User Agency (KUA), said that Aadhaar was a reliable and speedy tool for identification and authentication and there was no reason to hold it invalid. Private players like AUAs and KUAs are also governed by the law and they should also be allowed Aadhaar for authentication tool. Aadhaar does not have the learning algorithms like Google and Facebook, he added.
Advocate Zoheb Hossain, appearing for the Maharashtra government, initiated his submissions favouring the Aadhaar scheme. He referred to the UN charter and said it talked about inter-relation between socio-economic and civil political rights and an obligation was cast on the State to ensure that people get rights to food, shelter as provided under Article 21.
“In this case, the bench is balancing interference with the right to privacy which is the numerator and the denominator is the socio-economic rights of the people. It is not just a case where Part IV (fundamental rights) requirements are being read,” he said. Hossain would resume advancing arguments on May 2. Earlier, the court had questioned the Centre for ordering mandatory seeding of mobile numbers with Aadhaar saying its earlier order did not say that and still that was used as tool to impose it on citizens.