Senior Advocate Datar: "Aadhaar is like building a bridge and then, looking for a river. It is hunting for problems to make itself relevant."

Senior Advocate Datar: “Aadhaar is like building a bridge and then looking for a river. It is hunting for problems to make itself relevant.”

Senior Advocate Arvind Datar’s fiery rebuttal began today in the Aadhaar-PAN(Permanent Account Number) linkage case. Datar, who is representing CPI’s senior leader Binoy Viswam. argued that the earlier orders of the Supreme Court that Aadhaarcannont 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.

Justice Sikri said the Act would shave to be tested for its basis. Datar agreed that this was a new kind of case placed before the Court for the first time. Justice Bhushan said, “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 that 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 explained that the government had failed to show how the stated objective of curtailing black money is possible by linking Aadhaar and PAN. On the Attorney General’s (AG) 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 AGs argument on Foreign Account Tax Compliant Act (FATCA), Datar said that nothing in FATCA created a requirement for Aadhaar.  He was interrupted by government’s counsel Arghya Sengupta who stated “the problem is that if we give the United States duplicate PANs, it becomes an embarrassment.” Mr. Datar responded that this had nothing to do with the stated objective of of 139AA.

Senior advocate Arvind Datar cited the figure of only 0.04% of PAN cards being 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 that 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.

He said that the government was slowly attempting to make Aadhaar mandatory when claimed it was voluntary. This was a case of extreme and far reaching consequences. Mr. Datar said “The AG says, 99% have got it. What’s your problem? That argument is the death knell of individual rights and democracy.” Quoting William O. Douglas, Senior Advocate Datar said “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.” “Darkness does not come all at once. It is in the twilight that we must be most vigilant, or we are lost.” He asked “are fundamental rights the playthings of the majority?”

Finally, 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. Mr. Salman Khurshid also appeared for the petitioners and made brief submissions about human dignity and state control over the body.

The judgment has been reserved and no date has been given yet for the orders of the Court.


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