The Aadhaar Debate: 'The State Has No Right of Eminent Domain on the Human Body'

Forcing taxpayers to enrol for Aadhaar violates not just the voluntary nature of the scheme but also the constitutional guarantee against discrimination between different classes of people, argued Shyam Divan in the Supreme Court.

New Delhi: Senior advocate Shyam Divan’s arguments on Thursday for the petitioners in a writ petition challenging the government’s decision to make possession of an Aadhaar card mandatory for the filing of income tax returns  highlighted major problems with the Aadhaar project, especially its effect on the relationship between citizens and the state.

The petitioners in this case were “conscientious objectors to the Aadhaar project”, he said, law abiding citizens who wish to pay tax but do not wish to enroll in Aadhaar.  The Narendra Modi government’s amendment to the Income Tax Act – introduced as part of the Finance Bill during the recent budget session of parliament – discriminates between those who have Aadhaar and those who do not want to get Aadhaar, said Divan. Both classes of people want to pay taxes but those who do not wish to get Aadhaar will face penal consequences – a violation of Article 14 of the Constitution, which guarantees the right to equality.

Compelling people to enrol when as many as 34,000 private enrolment agencies have been blacklisted by the Unique Identification Authority of India since the project began and when there have been massive data leaks across 12 government websites violates free and informed consent, he said.

Divan also argued that  a citizen’s bodily integrity was being violated by the state through the collection of biometric data during the enrolment process. “My fingerprints and iris are my own. As far as I am concerned, the state cannot take away my body,” he said. Applying biometric collection to a narrow limited situation – such as passports, or identification of prisoners – was one thing but biometrics could not be collected wholesale and stored in a central depository and used for routine activities like buying a car, selling property or opening a savings account. All of these would eventually be contingent on the use of fingerprints.

The bench asked whether this argument would apply to the mandatory provision of PAN as well – hitherto a requirement for any tax assessee. Divan explained that PAN cards are not intrusive of a citizen’s body whereas Aadhaar is. “This is the kind of case where we have to read the preamble to the constitution,” he said.  The preamble makes it clear that the people of India give the constitution to themselves. “The Constitution of India is not a Charter of Servitude,” he added.

Shyam Divan also prepared a written outline of his arguments. An edited version is reproduced below.

The petition deserves to be allowed for the following reasons:

a) Biometric information, specifically finger prints and iris scan are intimate parts of a person’s body. They belong to the person, not the State. According to John Locke, “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person,” and Salmond reminds us that he speaks “of a man’s right to preserve his own property i.e. his life, liberty and estate.” As Peter Benson notes in Philosophy of Property Law‘,

“The right of bodily integrity is, first of all, a right, i.e. it refers to the fact that each individual has the rightful exclusive possession and use of his or her own body as against everyone else.”

On its part, Section 30 of the Aadhaar Act, 2016 read with Section 43A of the Information Technology Act, recognises ‘biometric information’ to be ‘sensitive personal data or information’.

b) The recognition of the distinction between an individual or person and the state is the single most important factor that distinguishes a totalitarian state from one that respects individuals and recognises their special identity and entitlement to dignity. The Indian constitution does not establish a totalitarian state but creates a state that is respectful of individual liberty and constitutionally guaranteed freedoms. The Constitution of India is not a charter of servitude.

c) The right to life covers and extends to a person’s right to protect his or her body and identity from harm. The right to life extends to allowing a person to preserve and protect his or her finger prints and iris scan. The strongest and most secure manner of a person protecting this facet of his or her bodily integrity and identity is to retain and not part with finger prints/iris scan.

d) The right to life under Article 21 read with Articles 14 and 19 permits every person to live life to the fullest and to the enjoy freedoms guaranteed as fundamental rights, constitutional rights, statutory rights and common law rights.

e) The constitutional validity of a statutory provision must be judged by assessing the effect the impugned provision has on fundamental rights.

f) The effect of the impugned provision is to coerce persons into parting with their finger prints and iris scan and lodging these personal and intimate aspects of an individual’s identity with the state as part of a programme that is in the petitioner’s view wholly illegitimate and the validity of which is pending before a constitution bench.

g) Save and except, by “reading down” section 139AA (if capable), this provision – for mandatory quoting of Aadhaar/ enrolment ID of Aadhaar application form, for filing of income tax returns – is unworkable. This is because Aadhaar by its very design and by its statute is “voluntary” and creates a right in favour of a resident without imposing any duty. There is no compulsion under the Aadhaar Act to enroll or obtain a number. If a person chooses not to enroll, at the highest, in terms of the Aadhaar Act he or she may be denied access to certain benefits and services funded through the Consolidated Fund of India.  When the Aadhaar enrolment procedure is supposedly based on informed free consent and is voluntary a person cannot be compelled by another law to waive free consent so as to alter the voluntary nature of enrolment that is engrafted in the parent statute. The right of a resident under the parent Act cannot be converted into a duty so long as the provisions of the Aadhaar Act remain as they are. This clash or collision between section 139AA and the Aadhaar Act renders the impugned section unworkable, unreasonable and void because of a discriminatory object. The provision is violative of Articles 14, 19 and 21. Converting a right into a duty is colourable exercise of power.

h) By visiting a conscientious objector (such as the petitioners) or any other person who does not have an Aadhaar number with severe consequences, the object of the impugned provision is itself discriminatory and violative of Article 14. There is no justification for discriminating against persons who do not wish to part with their sensitive biometric information such as finger prints and iris scan.

i) The impugned provision in effect treats an individual’s finger prints and iris scan as belonging to the state, blurring the distinction between the individual and the state. The impugned provision reduces to a mirage the voluntary nature of enrolment carried out under the Aadhaar programme and the Aadhaar Act. It compels Aadhaar enrolment which is directly in conflict with the Aadhaar programme, the Aadhaar Act and orders passed by this court.

j) A statutory provision that completely takes away the voluntary nature of Aadhaar and compels expropriation of a person’s finger prints and iris scan is per se violative of Article 21. In any event, such coercion cannot be imposed on legitimate tax payers and assessees who are otherwise willing to and pay income tax. There is no concept of eminent domain of the state qua a person and his body.

k) The state cannot hold an individual citizen hostage, by compelling them to part with something that does not belong to the state.

l) In a digital world, the right to life includes maintaining personal autonomy through informational self determination. An individual must be allowed to limit what he or she wants to put out because otherwise her personal autonomy could get compromised.

m) The coercion amounts to compelled speech. The freedom of speech includes the right to remain silent. Here, the citizen is being compelled to speak or part with his or her demographic information as well as finger prints and iris scan. The impugned provision violates Article 19(1)(a) and is not saved under Article 19(2).

n)   The impugned provision is wholly disproportionate and excessive. The so called state interest is minuscule compared to the massive invasion on person liberty and freedom.

o) The state has no legislative competence either under Entry 82 of List 1 (‘taxes on income other than agricultural income’) or any other source of legislative power to nationalise and secure dominion over personal and individual finger prints and iris scan.

p) Whenever a person voluntarily entrusts his finger prints and iris scan to the state, the ‘property’ and entitlement is retained with that individual throughout his life. The state merely acts as a trustee or fiduciary. The trustee or fiduciary cannot compel the “beneficiary” to part with such sensitive person information.

q) The framework of the Aadhaar Act and the Aadhaar programme is founded on voluntary enrolment. This is a foundational premise of the programme. According to the state, “free informed consent” is the essence of Aadhaar. The state cannot alter this basic premise based on which individuals were asked to enroll.

r) There is no comparison between the existing PAN system and the proposed or intended Aadhaar number system as the PAN system does not: –

  • require parting with the fingerprints and iris scan of an individual;
  • expose personal information and data to private enrollers;
  • create an ecosystem of authentication that potentially could compromise the identity of the individual;
  • lend itself to identity theft by which the person whose biometrics are compromised would suffer civil death.

s) Under the Income Tax Act, PANs are also assigned to children. The impugned provision coerces these individuals, who are below the age of free consent, to part with their fingerprints and iris scans.

Shyam Divan is counsel for the petitioners in S.G. Vombatkere & Anr v. Union of India and Ors. in Writ Petition (Civil) No. 277 of 2017 before the Supreme Court