Friday, May 05, 2017

Aadhaar sold as panacea for all ills – black money, terrorism, leakage etc. like herbal medicine: Advocate Datar

By Our Representative
Senior advocate Arvind Datar, in his strong rebuttal to the plan to link aadhaar with Permanent Account Number (PAN) by the Government of India, has argued in the Supreme Court that the earlier orders of the apex court that aadhaar cannot be made mandatory “continue to hold weight.”
“The Union and all states were before the court when these orders were passed. The Attorney General (AG) had even given an undertaking to the Court stating that aadhaar would be voluntary”, Datar said.
Datar appeared before the court to represent CPI leader Binoy Viswam.
When Justice AK Sikri said that the Aadhaar Act would shave to be tested for its basis, Datar said, he “agreed” that this was a new kind of case, placed before the court for the first time.
And when Justice Ashok Bhushan said that the “scheme has now become an Act", Datar explained that when the Supreme Court had given its orders, Parliament could only overrule judicial orders in a manner known to law – that is, by taking away their basis.
A Supreme Court directive or judgment is sacrosanct, unless set aside by a process known to law, Datar said, adding, there was a clear collision between the Aadhaar Act and the Income Tax Act, and "if both Acts are allowed to stand the results would be absurd."
Datar added, the government had failed to show how the stated objective of curtailing black money is possible by linking aadhaar and PAN.
On the AG’s argument that aadhaar was needed to fight black money and terrorism, Datar said, "Anybody with any common sense would ask, how will aadhaar check black money? Aadhaar was sold as a panacea for all ills – black money, terrorism, leakage etc. like herbal medicine", but, he noted, "Aadhaar is like having built a bridge and looking for a river. It is hunting for problems to make itself relevant."
On the AG’s argument on Foreign Account Tax Compliant Act (FATCA), Datar said that nothing in FATCA created a requirement for aadhaar.
When interrupted by government counsel Arghya Sengupta, who said "the problem is that if we give the US duplicate PANs, it becomes an embarrassment", Datar responded, this had nothing to do with the stated objective of 139AA.
The Finance Bill’s Section 139AA says, “Every person who is eligible to obtain aadhaar number shall, on or after the 1st day of July 2017, quote aadhaar number in the application form for allotment of permanent account number” and in “in the return of income”.
Datar said, only 0.04% of PAN cards were duplicates. He asked whether the government had done any study before introducing 139AA. He said "for 0.4% duplicates, 99.6% must seed their Aadhaar with PAN. Is that reasonable restriction under Article 19(6)?"
He argued, without a PAN card, people's economic lives would come to a standstill, and that interests (the ability to do business versus duplicate PAN cards) had to be balanced.
Datar said, the government was slowly attempting to make aadhaar mandatory, though it claimed it was voluntary. This was a case of extreme and far-reaching consequences. He added, "The AG says, 99% have got it. What's your problem? That argument is the death knell of individual rights and democracy."
Supported by Salman Khurshid, Datar submitted that the Court must strike down 139AA or read it down and in case the court decides to refer the case it should stay 139AA. The judgment has been reserved and no date has been given yet for the orders of the court.

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