Invalidating PAN without Aadhaar is draconian, counsels submit arguments to SC

Senior advocate Arvind Datar submitted that unless the court intervened, if the government invalidated the Permanent Account Number (PAN) card if it was not linked to the Aadhaar card, then an individual would be crippled. Senior advocates Datar and Shyam Diwan were arguing in connection to petitions filed in the Supreme Court challenging the Aadhaar Act. 

While Datar restricted his arguments on the merits of the law, Diwan took the opportunity to highlight how dangerous it would be to allow private entities -- who have been contracted by the government to make Aadhaar cards, access to your most important and personal details of your life. 

“Invalidating PAN without Aadhaar is draconian and an individual will suffer a virtual civil death,” Datar submitted before a bench comprising of Justices AK Sikri and Ashok Bhushan. 

Datar spoke on four important points during his more than two-hour-long submission. He suggested that it was arbitrary to make Aadhaar voluntary under the Aadhaar Act, but mandatory under the Finance Act. “If this is the case, the government can modify the law and make Aadhaar mandatory in the parent act (Aadhaar Act), remove the basis of voluntary,” Datar submitted. The senior advocate further added that the government had made Aadhaar mandatory for several financial exercises despite giving this court their repeated assurances that Aadhaar card was voluntary not mandatory.  

Furthermore, Datar pointed out, that Aadhaar was introduced primarily to disburse welfare schemes for the marginalised or those who required it from the state. “For someone like me, who will never avail of these benefits, why should we be visited with such draconian penalties,” Datar questioned. It should remain voluntary for those who do not wish to avail of any benefits or subsidies from the state, Datar stressed.  

The senior advocate championed the cause for the right to say no to Aadhaar. The recurring theme and gist of the submissions rested on the fact that the act stated enrolling for an Aadhaar was a purely voluntary exercise. Undercurrents, of the privacy issue kept popping up, though, Datar -- and all those involved, were aware that a larger constitutional bench would decide on this matter at some point. However, Diwan, did not shy away and pulled punches while stressing the on the dangers of Aadhaar intruding in the private life of an individual. 

That the Aadhaar was violative of Article 14 - equality before the law, was pointed out when Datar submitted that Aadhaar for an individual was compulsory to file IT returns. “For obvious reasons, biometrics of an artificial person -- like a company, or a trust, cannot be taken. Hence, Aadhaar discriminates against private individuals who are the first of the 12 categories of assessees under the IT Act.”

However, while hearing the submissions, Justice Sikri observed leaving the privacy issue aside, what harm could come if one system (Aadhaar) replaced another (PAN)? Justice Sikri also stressed that the court could not question the wisdom of the parliament which passed the act. 

To this, Datar submitted that there have been instances where the SC have struck down parliamentary laws on account of its arbitrariness. 

Representing the union, Attorney General Mukul Rohatgi submitted that almost 99% of the country have already been covered under the Aadhaar act. “Biometrics is the only system that can avoid duplication,” Rohatgi said. The AG stressed that Aadhaar was a way to circumvent the huge number of fake PAN cards that were floating in the market. Furthermore, Aadhaar would prevent misuse of disbursement of welfare funds thereby preventing corruption and saving the exchequer's money. 

Due to the paucity of time, submissions on this issue have been scheduled for Thursday as well, where Diwan will present his case, followed by the Union.