Category Archives: Bodily Privacy/Integrity

The Constitutional Challenge to Aadhaar/PAN – III: The Petitioners’ Rejoinder and the Issues before the Court

In the last two posts, we examined the case of the Petitioners and that of the Union of India before the Supreme Court in the constitutional challenge to S. 139AA of the IT Act. In this post, we shall conclude by discussing the Petitioners’ rejoinder, and outlining the issues that the Court must adjudicate.

Mr Shyam Divan’s Rejoinder

On Article 14 and the Collision Between the Aadhaar Act and S. 139AA

Mr Divan argued that the entire case rested upon the Attorney-General’s argument that S. 7 of the Aadhaar Act was virtually mandatory – an argument, he stated, he had heard for the first time during these proceedings. Mr Divan contended that the only way in which the Attorney-General had managed to reconcile the Aadhaar Act and S. 139AA was by arguing that S. 7 was mandatory. If that argument failed, then the entire edifice would crumble, and S. 139AA would have to be struck down.

Mr Divan argued that the entire scheme of the Aadhaar Act made it clear that it was voluntary. This was evident from the Statement of Objects and Reasons, from Section 3, which stipulated that “every resident shall be entitled” to an Aadhaar number. It was also evident from S. 3(2), which required the enrolling agency to inform the individual about the manner in which the information would be used and S. 8(2)(a), which required requesting entities to “obtain consent” . And S.7 only permitted the Government to make Aadhaar mandatory as a condition for receiving subsidies which were financed out of the Consolidated Fund of India. Mr Divan argued that the Attorney-General’s reliance on S. 57 was incorrect, because S. 57 clearly stated that it was subject to the rest of the Aadhaar Act. No coercive measures were contemplated by the Act. Furthermore, the voluntariness of Aadhaar was also evident from the enrolling form, which specified consent; from the UIDAI’s own website, which used the phrases “entitled to voluntarily obtain an Aadhaar number“, and “any person may choose to use Aadhaar“; and from the UIDAI’s advertisements.

Aadhaar, therefore, was a voluntary scheme. What flowed from this, according to Mr Divan, was that a legislative scheme which divided people into two categories – those who choose to have an Aadhaar, and those who don’t – and then burdened the latter category, was discriminatory on the face of it. And this was precisely what S. 139AA did. By dividing taxpayers into those who had freely chosen to get an Aadhaar number, and those who hadn’t, and by forcibly requiring the latter to get an Aadhaar, S. 139AA violated Article 14 because its very objective was discriminatory. Mr Divan argued that the petition should succeed on this count alone.

Compelled Speech 

Mr Divan clarified that his point about compelled speech was simply that, by parting with her biometric details and iris scan – the most personal of all information about oneself – the individual was being compelled to “speak” – and that too, not to the State, but to private enrolling agencies. Mr Divan conceded that there might be different considerations if the State was doing the collecting itself; but how, he asked, could the State compel the individual to “speak” to another individual with whom they did not wish to have any interaction? Reading out the list of private enrollers, Mr Divan argued that the entire architecture of Aadhaar – which required me to go and provide my most sensitive information not to the State, but to “Pankaj Shah of Bits and Bytes Co.” violated Article 19(1)(a).

Bodily Integrity, Compelling State Interest, Narrow Tailoring 

The Union of India’s entire argument – Mr Divan stated – essentially boiled down to “what’s the big deal about this? Other laws require you to part with personal information too.” To this, he responded that there could be laws which infringed bodily integrity in order to protect and preserve life: this is why there were laws mandating helmets and seatbelts. Likewise, there could be laws stipulating narrowly-tailored exceptions to the right, in service of a compelling State interest, such as passports (where an urgent need might arise to identify a person in case of an accident abroad). That, however, was a far cry from a centralised database, which – according to the Union’s own affidavit – involved seeding of information. This was also what distinguished Aadhaar from a provision such as S. 32A of the Registration Act. The Registration Act required you to give your fingerprints, but that was for your benefit and was only on the document; it did not go into a centralised database, with all the accompanying possibilities of misuse and data theft. Similarly, the Census Act accorded a very high degree of protection to census information: inspection of census registered, for instance, was prohibited. What this showed was that when the coercive power of the State is used to invade bodily integrity, there must be a consequently high degree of protection – something which Aadhaar, with the possibility of seeding, did not have.

Furthermore, Mr Divan argued, the State had failed to make out a compelling interest. The argument about “giving people an identity” was flawed, because 99.97% of Aadhaar applicants already had pre-existing identity documents. The logic of duplication was also flawed, because official information showed the presence of 1,69,000 duplicate Aadhaar numbers. Consequently, the large-sale infringement of bodily integrity in this case could not be sustained by the goal the State was trying to achieve.

Competence and Deference 

Mr Divan reiterated his argument that under the constitutional scheme, there was an implied limitation upon the State’s power to legislate when it came to the human body: only narrowly-tailored infringements, in service of a compelling interest, were permitted. Wholesale taking of biometric details and iris scans, and storing them in a centralised database for the purposes of seeding was neither narrowly-tailored, nor in service of a compelling interest. Mr Divan also pointed  out that this case had raised serious questions pertaining to the violation of Articles 14, 19, and 21 of the Constitution. Consequently, the Court ought not to follow its usual policy in dealing with “fiscal statutes”, and defer to legislative wisdom; although 139AA was a tax amendment, its nature was anything but purely fiscal.

Mr Divan concluded by arguing that the Union’s three-pronged case – that there was no right to privacy, that fingerprinting and iris scans were no more intrusive than a photograph, and that Aadhaar was mandatory – if accepted, would overturn the entire relationship between the individual and the State, concentrating great power in the hands of the latter at the expense of the former. That would result in a tremendous compromise of civil liberties. He would urge the Court to strike down S. 139AA.

Mr Datar’s Rejoinder

Legislative Overruling of Judicial Orders

Mr Datar argued that before the Supreme Court, the Union of India had always reiterated that Aadhaar was voluntary. On 11th August 2015, and then again on 15th October 2015, the Supreme Court itself had stated that Aadhaar could not be made mandatory. Now, it was open to Parliament to legislate in a way that took away the basis of these orders. Parliament, for instance, could simply stipulate, in a law, that henceforth, every individual was obligated to obtain an Aadhaar Number. However, Parliament had not done that. Parliament had simply enacted S. 139AA, which made it mandatory to quote an Aadhaar number while filing Income Tax returns. That did not amount to taking away the basis of the Supreme Court orders. Mr Datar took the example of a case in Bangalore, where notwithstanding building regulations prohibiting a height of more than 80m, a person had built up to 100m. The case was taken to Court, and he lost. However, before his building could be demolished, the Regulation was changed to make the legal height 110m, and applicable retrospectively, from the time that construction had commenced. That, argued Mr Datar, was an instance of how the basis of a judgment could be altered, and that was the only way known to law in which the Parliament or Executive could overcome a contrary court order. Similarly, in the Supreme Court’s recent judgment banning liquor within a specified distance from highways, some states had responded by denotifying their highways, and turning them into ordinary roads. That was permissible, because it removed the basis of the Court’s judgment; however, those states could not simply have said, “notwithstanding the Supreme Court judgment, alcohol will continue to be sold in these shops.” S. 139AA effectively amounted to state action of the latter kind.

Justice Sikri pointed out that what was unique about this case was that the Court’s earlier orders had been passed when Aadhaar was merely an executive scheme, and no law existed. So could it be said that the orders even applied to a law in the first place? Mr Datar responded by saying that in view of Ram Jawaya Kapoor’s Case, the executive and legislative powers of the State were co-extensive. Consequently, whether the original orders applied to an executive scheme, or to a law, the point remained that they could only be overcome through the specific mechanism outlined above. Justice Sikri and Mr Datar agreed that the Court was dealing with this kind of a situation for the first time in its history, and would have to lay down the law on the basis of first principles. Justice Sikri then asked what the “basis” of the earlier Court orders was, that the Parliament could have legislated to take away. Mr Datar responded that the basis was that since the validity of Aadhaar was yet to be tested on the constitutional anvil, in the meantime it could not be made mandatory for anything but a specified number of services. Consequently, the only way of removing this basis was to pass an Act that stated “Parliament may make Aadhaar mandatory…” Mr Arghya Sengupta interjected to state that S. 7 of the Aadhaar Act did this already. Mr. Datar replied that S. 7 did nothing of the sort.

Legislative Dichotomy

Mr Datar then pointed out that S. 139AA of the Aadhaar Act did not contain a non-obstante clause (“notwithstanding anything contained in any other law for the time being in force…). In the absence of a non-obstante clause, there was a clear collision – or a dichotomy – between the Aadhaar Act and S. 139AA, a dichotomy that could be resolved only by striking down S. 139AA. Once Parliament had passed a law which made Aadhaar a right – it could not then pass a contrary law that made Aadhaar its jural opposite –  a duty without a non-obstante clause. Mr Datar read out numerous parliamentary statements – including one by Mr Jaitley – to demonstrate that at its core, Aadhaar was meant to be voluntary, and also pointed to the utter lack of debate in Parliament before passing S. 139AA.

Article 14

Mr Datar argued once again that the State had entirely failed to make out a rational nexus between making Aadhaar compulsory for individual taxpayers, and its stated goal(s) of preventing duplication, preventing black money, and preventing terrorism. He pointed out that only 0.4% of PAN Cards had been found to be duplicate, and that these figures from 2006. In response to Mr Sengupta’s interjection that this was only 0.4% of a very small sample, Mr Datar responded that that was exactly the point of statistical sampling. He observed there was no data after 2006, and asked on what basis the State had decided to take such a huge step – of mandatory Aadhaar – without analysing data, or sending the matter for consideration by a Parliamentary committee. The reason for the discrepancy between the number of PAN Cards and the number of taxpayers was simply that, after 1998, PAN began to be used for a wide number of transactions that had nothing to do with tax. Consequently, the Union had failed to discharge its burden under Article 14 that there existed a rational nexus between making individuals quote their Aadhaar numbers while filing tax returns, and checking duplication, tax evasion, or black money.

Mr Datar also addressed the Attorney-General’s arguments under FATCA, arguing that FATCA had nothing to do with Aadhaar numbers at all. Mr Arghya Sengupta interjected, saying that FATCA required handing over PAN numbers to US authorities, and that it would be embarrassing if duplicate PANs were handed over. Mr Datar pointed out that this had nothing to do with rational nexus under Article 14.

Article 19(1)(g) 

Mr Datar argued that the consequences of not having a PAN Card effectively locked an individual out of a number of economic transactions that were a lifeline (especially) for small traders and entrepreneurs. Apart from crores of individual taxpayers, it would be this class that would be affected the most: their entire economic life would grind to a halt. Consequently, for those who did not wish to get an Aadhaar number, S. 139AA was a serious infringement of their right to carry on trade and business under Article 19(1)9(g).

Now, if a law violated Article 19(1)(g), it could only be justified under Article 19(6): i.e., if it was a reasonable restriction in the interests of the general public. The correct test for assessing reasonableness had been laid down by Justice Sikri himself, in Modern Dental College vs State of MP (discussed on this blog here), and it was the test of “proportionality”:

“… a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (paragraph 53)

Mr Datar pointed out that for 0.4% of duplicate PANs, 99.96% of taxpayers were being forced into Aadhaar. How, he asked, was this proportionate? In the balancing of interests between duplicate PANs and the freedom to do business, proportionality – in this case – clearly weighed in on the side of the former.

Mr Datar concluded by stating that this was a very serious case, with far-reaching consequences for civil liberties. Responding to the Attorney-General’s contention that all that had happened was that an extra “A” had been added to S. 139A, making it “Section 139AA”, he urged the Court to stop the encroachment on individual rights at its first step. He ended by quoting Justice Douglas of the US Supreme Court:

“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.”

Issues before the Court

The Supreme Court has to resolve the following issues:

(a) Did S. 139AA “take away the basis” of the Supreme Court’s earlier orders on Aadhaar being voluntary, or is it an impermissible legislative overruling of a binding Court order?

(b) Does S. 139AA violate bodily integrity under Article 21? If it does, then does it serve a compelling State interest? And is it narrowly-tailored? Is it analogous to other laws such as the Registration Act, the Census Act, or the Passports Act, or is it much broader and far-reaching then those statutes? When deciding this issue, the Court will also have to decide how much to defer to the Union’s claims on duplication and black money, in view of the fact that the Petitioners strongly contested the validity of these claims. One interesting aspect here is how the Court will choose to allocate burdens of proof: will it, if it finds an infringement of bodily integrity, hold that the State must then justify it on the touchstone of compelling interest and narrow tailoring?

(c) Does S. 139AA violate Article 19(1)(g)? If so, is it proportionate, in view of statistics on the number of duplicate PANs and the existence of duplicate Aadhaars?

(d) In view of the fact that the Aadhaar Act makes Aadhaar voluntary, does S. 139AA fail the discriminatory purpose prong of Article 14 by classifying taxpayers into those who have voluntarily taken an Aadhaar number, and those who haven’t?

(e) Has the State shown a “rational nexus” under Article 14, with its goals of preventing black money and duplication? Here again, the issue of deference will become decisive: will the Court hold 139AA to be an economic statute, and take the Union’s claims at face value? Or will it, in view of the contentions involving fundamental rights, subject the Union to a stricter scrutiny in justifying its contention about Aadhaar being the panacea for preventing tax evasion?

(f) Does 139AA amount to compelled speech under Article 19(1)(a)?

(g) Does 139AA violate the principle of informational self-determination under Article 21?

(e) Is there an implied limitation upon legislative competence as far as laws concerning the human body are concerned? If yes, then does 139AA violate this implied limitation?

Options before the Court

The Court may do one of the following six things:

(a) Strike down S. 139AA as unconstitutional.

(b) Accept Mr Divan’s argument, and hold that S. 139AA is voluntary by reading “shall” as “may”.

(c) Accept Mr Datar’s argument and “harmoniously construe” S. 139AA and the Aadhaar Act by holding that those who have already procured and Aadhaar number might be required to quote it, but those who haven’t cannot be compelled to enroll.

(d) Find that issues or privacy are essential to decide the case, refer the matter to the pending Constitution Bench, and stay its operation in the meantime.

(e) Refer without staying

(f) Uphold S. 139AA entirely, but leave it open to the Petitioners to challenge it on the grounds of privacy, once the Constitution Bench finally decides the main Aadhaar challenge.

 

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Filed under aadhaar, Article 14, Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Equality, Privacy

The Constitutional Challenge to S. 139AA of the IT Act (Aadhaar/PAN) – II: The Union’s Arguments

In the previous post, I detailed the petitioners’ arguments in the constitutional challenge to S. 139AA of the Income Tax Act, which effectively makes enrolling for an Aadhaar number compulsory for taxpayers. After Petitioners completed their arguments, the Union of India – through the Attorney-General, Mr Arghya Sengupta, and Mr Zoheb Hossain – responded in defence of S. 139AA. Mr Shyam Divan and Mr Arvind Datar then replied for the Petitioners. In this post, I shall provide a brief account of the arguments, isolate the issues that the two-judge bench of the Supreme Court must address, and outline the possible outcomes.

The Attorney-General’s Arguments: A Limited Right to Bodily Integrity

The Attorney-General argued that the Petitioners’ Article 21 challenge to S. 139AA – focusing on bodily integrity – was nothing but a camouflaged privacy challenge, which the Court could not examine at this stage (see previous post on the dropping of privacy arguments from the present proceedings). However, assuming that there was an independent right to bodily integrity under Article 21, the thrust of the Attorney-General’s argument was that this right could be limited by the State – and in fact, was limited by the State in a number of other domains, in ways equally, or more, intrusive than Aadhaar. For instance, Section 32 of the Registration Act, 1908, required all ten fingerprints as a pre-requisite for registering property. People routinely subjected themselves to biometric collection while traveling abroad. More broadly, the Attorney-General argued that Aadhaar only did something that was already normalised and routinised in society: in an era of ubiquitous photography, what was so unacceptably intrusive about an iris scan? Given the ubiquity of online transactions through smartphones, what was so intrusive about having to part with one’s data for the purpose paying taxes? To accede to the Petitioners’ arguments would be to set a legal standard that could only be fulfilled by hermits living alone in the mountains, and not citizens part of the modern, digital economy.

Although the Attorney-General did not specifically use the term, what he appeared to be doing was borrowing the American doctrine of “reasonable expectation of privacy“: that is, the scope of one’s right to privacy – or, in the language in which this case was argued – “bodily integrity” – is determined by what is socially sanctioned and understood as reasonable at any given time. Briefly put, the Attorney-General’s case was that Aadhaar calls upon citizens to give up only that which they voluntarily and regularly give up as part of their daily lives; consequently, there was no constitutional violation to start with.

The Attorney-General then argued that in any event, citizens had no absolute rights over their bodies. In this case, there was a larger public interest that justified the level of infringement. For instance, the Medical Termination of Pregnancy Act regulated the conditions under which a woman could abort her foetus. Random breath checks for drunken driving were required in the interests of road safety. At this point, Justice Sikri interjected, and wondered whether those examples were analogous, because in those cases, the restrictions were clearly reasonable. To this, the Attorney-General replied that in the present case as well, there was a larger public interest: the effective and efficient collection of taxes, which was an integral part of life in an ordered society.

To substantiate this argument, the Attorney-General took the Court through the history of PAN Cards, and the perceived need to replace them with Aadhaar. He argued that on a random verification of 0.2% of all PAN Cards, a number of duplicate PANs were thrown up. Besides, over the previous twenty years, the existence of shell companies, the presence of directors in multiple companies, and multiple PAN holders, had all come to light. India was a highly tax non-compliant society. Furthermore, in addition to tax dodging, there were also problems of black money, which was used to finance terrorism. For all these reasons, it was important to develop a system in which identification could not be faked. The Attorney-General submitted that the only way to accomplish this was to digitise fingerprints and iris scans, and keep them for posterity. At present, fingerprints and iris scans could not be duplicated, and consequently, the shift to Aadhaar was necessary. Furthermore, this data would be encrypted and stored in a centralised server, and shared only with the police in case it was needed for resolving a crime.

Aadhaar itself, the Attorney-General submitted, was originally conceputalised to prevent leakages in the public distribution system, in payment of wages under the NREGA, in the payment of pensions, and so on. He argued that with Aadhaar, more than Rs 50 crores had been saved by plugging leakages. Consequently, even if there was some infringement of individual rights, it was balanced by the larger public goal, as mandated – according to the Attorney-General – by Rousseau’s conceptualisation of the social contract. Individuals were in a contractual relationship with the State from their birth, reliant upon it for a host of benefits; how then could they refuse to pay their taxes in the manner mandated by the State?

Indeed – according to the Attorney-General – the Supreme Court had itself sanctioned the use of Aadhaar in PDS schemes in 2011, and in SIM card verification just a couple of months before. Furthermore, an accurate identification system such as Aadhaar was needed to ensure that India was in compliance with its obligations under international agreements such as the FATCA. For all these reasons, the Attorney-General submitted that Aadhaar was entirely within the parametres of Article 21 of the Constitution.

He concluded his arguments by submitting that within the contours of the social contract, nobody had a right to make themselves invisible: “you may want to be forgotten. But the State does not want to forget you.

Returning to this argument at a later point in his submissions, the Attorney-General also argued that a number of Supreme Court cases – such as Kathi Kalu Oghad – had held that compelling persons accused of a crime to provide their fingerprints had been held not to violate the constitutional right against self-incrimination. So why couldn’t the State put in preventive measures to check tax dodging in advance? Justice Sikri interjected to say that the Kathi Kalu line of cases might not be apposite, because they involved accused in criminal cases; surely it was not right to treat the entire country as presumptively accused of tax dodging. The Attorney-General replied that he was only arguing that the right to bodily integrity was not absolute – it could be taken away in certain cases. “Which cases, is the question“, Justice Sikri responded. “Even your life can be taken away under Article 21“, the Attorney-General continued. “But only with due process,” Justice Sikri replied. “We must balance individual dignity with State interests.” The Attorney-General responded: “at the end of the day, if you can give your fingerprints for registering property, why can’t you give your fingerprints for this?

Still later in his submissions, the Attorney-General cited precedents from the American Supreme Court about urine testing for school athletes, DNA testing of a rape accused, and – perhaps paradoxically – Roe vs Wade – to reiterate that the right to bodily integrity was not absolute.

Article 19(1)(g)

The Attorney-General’s rebuttal to Mr Datar’s argument on Article 19(1)(g) was brief. He stated that there was no violation of Article 19(1)(g), and expressed surprise that in this day and age, someone was making a constitutional argument based on Article 19(1)(g).

S. 139AA and the Aadhaar Act

The Attorney-General submitted that there was no conflict between Section 139AA and the Aadhaar Act. Responding to Mr Shyam Divan’s submission that the coercive character of 139AA could not stand alongside the voluntary nature of Aadhaar, the Attorney-General argued that Section 7 of the Aadhaar Act was at least partially mandatory: the State could tell citizens “either you should have an Aadhaar Act, or you jolly well apply for it.” Furthermore, under S. 57 of the Aadhaar Act, Aadhaar could be used for purposes other than those stipulated in the Act itself. And in any event, he argued, Parliament’s power to prescribe uses for Aadhaar was plenary, and subject only to the Constitution. The Attorney-General added that the Aadhaar Act came built in with safeguards: Section 29, for instance, prohibited the sharing of information. True, there had been some leaks of late; but those leaks, he argued, had not come from the UIDAI, or the central government, but the Jharkhand state government; and in any event, biometric details had not been compromised – only bank account information had.

Parliamentary Legislation and Court Orders

The Attorney-General’s final argument was that whatever the status of the pre-2016 Supreme Court orders stipulating that Aadhaar could only remain voluntary, all these were overridden by subsequent legislation. There was no such thing as “legislative estoppel“. No Court could injunct Parliament from passing laws as it deemed fit. By passing the Aadhaar Act – and then s. 139AA – the Parliament had simply exercised its plenary powers, and passed validating legislation taking away the basis of the prior court orders.

The Attorney-General concluded his arguments by citing a World Bank Report praising the Aadhaar system. Everyone needed an identity, he argued. Many people in India had no identity. Aadhaar was a method to bring them into the mainstream, prevent exclusion, and guarantee them their dignity.

The Arguments of Mr. Arghya Sengupta: Article 14 and Proportionality

Continuing the case for the Union, Mr Arghya Sengupta argued that Mr Datar’s claim that 139AA violated Article 14 of the Constitution was incorrect, because Article 14 did not require the Court to undertake a proportionality analysis. He cited K.T. Plantations for the proposition that a proportionality test effectively amounted to judges substituting their wisdom for that of Parliament. Taking the Court through comparative law, Mr Sengupta submitted that traditional judicial review claims in the United Kingdom had never included a proportionality test. While the European Court of Human Rights did incorporate a proportionality analysis into its rights-analysis, this only caused greater confusion than resolution. Relying upon Lord Pannick and Lord Hoffman, Mr Sengupta submitted that “the reasons for not treating people equally often involve considerations of social policy.” Justice Sikri interjected to observe that equality claims in the United Kingdom – which didn’t have a Constitution – might be treated differently from how they were in India. Mr Sengupta responded that the broader point was that proportionality only entered the picture when some balancing of rights was involved. Article 14 only required the Courts to ask whether there existed a valid reason for treating people differently from one another. There was no question of balancing. In fact, Article 14 was not about “rights” at all; fundamentally, it was about “wrongs”. Mr Sengupta concluded this argument by citing Professor Rebecca Dixon for the proposition that even the proportionality test had begun to collapse into the traditional test, and argued for the retention of the traditional Indian test of intelligible differentia and rational nexus.

On the merits of Article 14 itself, Mr Sengupta argued that Mr Datar was incorrect in arguing that the disproportionate penalty for not complying with Article 139AA rendered it violative of Article 14. Relying upon the McDowell Casehe repeated his submission that proportionality could not be invoked to strike down a statute under Article 14. Nor could a statute be struck down on grounds of arbitrariness. Justice Sikri interjected that, by virtue of Mardia Chemicals, it might be possible to invalidate a statute on grounds of arbitrariness. In response, Mr Sengupta cited Rajbala vs State of Haryana, which had rejected the arbitrariness doctrine (for a previous discussion of this debate on this blog, see here; for an analysis of Rajbala, see here).

Coming to the traditional classification test under Article 14, Mr Sengupta opposed Mr Datar’s argument that by making Aadhaar compulsory only for individual assessees, S. 139AA violated the rational nexus test. He argued that, by definition, only individuals could have Aadhaar numbers (as opposed to companies, or HUFs). Consequently, Parliament had chosen to first focus on the problem of black money and tax evasion committed by individuals, and had brought in Aadhaar to check that. No enactment, Mr Sengupta argued, could completely solve a social problem. Parliament had decided to make a start with individuals, and at a future date, would devise ways for dealing with the other categories of assessees as well.

Justice Sikri said that he understood that there was no discrimination if companies were incapable of even having Aadhaar numbers. However, the question was why discriminate between two people, both of whom were willing to pay tax, if one of them was willing to enrol for an Aadhaar number, and the other was not. Mr Sengupta replied that the purpose of 139AA was not to discriminate, but to prevent duplication of PAN cards. So the discriminatory object test under Article 14 – as Mr Shyam Divan had argued – was inapplicable. In fact, much like in the US, when TIN was replaced by SSN, in future, the State might choose to replace PAN with Aadhaar entirely.

Conscientious Objection

Mr Sengupta submitted that Mr Divan calling his clients “conscientious objectors” who were being discriminated against was entirely misplaced. Citing texts on civil disobedience and conscientious objection, he argued that what Mr Divan was essentially arguing for was a license to break the law. You may not want to stand up for the national anthem, he pointed out, but that did not mean you could sit down. Justice Sikri observed that that might not be an entirely accurate framing; the petitioners had, after all, approached the Court to have the law struck down. Mr Sengupta replied that there could be conscientious objection to all kinds of laws, but that in itself did not make them discriminatory.

Informational Self-Determination

Mr Sengupta’s final argument was on informational self-determination. He submitted that there was no absolute right to informational self-determination. The State could – and did – collect a wide range of information from individuals: births, deaths, marriages. The information that the State required from its citizens was extensive, and nobody challenged it. In any event, Mr Sengupta argued, whatever right to informational self-determination – in the apparent guise of privacy – did exist, it would have to be conditioned and defined by cultural factors. India was very different from Germany, from where Mr Divan had drawn his doctrine. There would have to be devised an Indian doctrine of informational self-determination, drawn from Indian conditions. Citing Mark Tushnet on the dangers of comparative law, Mr Sengupta argued against “importing” the conception of privacy into India.

At this point, Mr Divan interjected and said that his argument was not a privacy argument, but an argument about his right to his body. Justice Sikri observed that there might be overlaps between the two concepts. Mr Divan responded that there might indeed be overlaps, but that his right to bodily integrity was not subsumed within his right to privacy. Mr Sengupta argued that it was not open to this Court to draw a distinction between privacy and informational self-determination; given that the very question of privacy was pending before the Constitution Bench, it was for the Constitution Bench to decide what the scope of privacy was, and whether or not it included informational self-determination. Returning to his argument about importing foreign law into India, Mr Sengupta cited Justice Antonin Scalia of the American Supreme Court who, in a death penalty case, had resisted the use of comparative precedent, arguing that in judging whether the death penalty in a particular case was “cruel and unusual punishment”, only “American standards of decency” ought to be looked at.

In any event, Mr Sengupta continued, even the German Constitutional Court required a balancing between individual and community interests. He repeated his submission that the right to informational self-determination was fundamentally about privacy, since the right to control information about oneself was a facet of privacy. If the Court was going to go into that, then there was a compelling State interest in the present case: that of preventing duplicate PANs, and ensuring efficient collection of taxes. Justice Sikri stated that the Petitioners would have to show why they had a right to pay taxes in the manner that they desired. Mr Sengupta continued by saying that biometric collection was the most sophisticated system presently known. PAN was the technology of 1975, he concluded; but Aadhaar was the technology of 2016.

The Arguments of Mr Zoheb Hossain

Mr Zoheb Hossain observed that India is a progressive tax regime. Progressive taxation was itself a facet of Article 14 of the Constitution. 139AA served this progressive goal by eliminating the inequality between taxpayers and tax evaders, by making duplication of PANs impossible. There was no discrimination against individuals; in fact, there were other provisions of the Income Tax Act – such as dividend distribution tax – applicable only to companies.

Mr Hossain then argued that Mr Divan was incorrect to argue that compelled taking of biometric details and iris scans amounted to compelled speech. Citing United States vs O’Brien, he argued that not every act or conduct amounted to “speech”.

Mr Hossain concluded by arguing that the standard for injuncting a parliamentary legislation was extremely high. There could be no injunction unless the statute was manifestly unconstitutional. Consequently, if the Court was inclined to refer the case to the larger bench, it ought not to grant a stay on the operation of S. 139AA.

(Disclaimer: The writer assisted the Petitioners in the constitutional challenge before the Court.)

 

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Filed under aadhaar, arbitrariness, Article 14, Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Equality, Free Speech, Privacy

The Constitutional Challenge to S. 139AA of the IT Act (Aadhaar/PAN): Petitioners’ Arguments

Last month, through an amendment to the Income Tax Act, Parliament made it compulsory for all taxpayers to quote their Aadhaar numbers while filing their return of income (or while applying for a new PAN number). Under the new Section 139AA of the IT Act, the consequence of not complying with this was an invalidation of the individual’s PAN number. This, in turn, would have a number of serious consequences, affecting an individual’s ability to pay her taxes, as well as being blocked from undertaking a number of transactions (such as buying a motor vehicle, or opening a bank account), all of which require a PAN number. In short, Section 139AA effectively required tax-paying individuals to get an Aadhaar Card, on the pain of visiting severe disabilities upon them in case of non-compliance.

On this blog, we have covered some of the constitutional problems with the Aadhaar scheme (which involves the taking of an individual’s biometric details, iris scan, and demographic information, ostensibly for the purpose of better authentication), the government’s conduct in having the Aadhaar Act passed as a money bill, and the Supreme Court’s continuous evasion of the issue by refusing to hear the pending constitutional challenges. Readers will recall the following facts: on 11th August 2015, when Aadhaar was still an executive scheme, three judges of the Supreme Court had referred the constitutional challenge to a larger bench, on the basis that the constitutional status of the fundamental right to privacy was in some doubt; in the meantime, the Court stipulated that Aadhaar could not be made mandatory for welfare schemes. The Constitution Bench assembled once more in October 2015 to modify that order in some respects. After that, the case has not been heard. In the meantime, Parliament passed the Aadhaar Act, which authorised the State to make Aadhaar mandatory for availing of certain benefits or subsidies. Since the passage of the Aadhaar Act, Aadhaar has been made mandatory for a wide range of goods and services, including midday meals. It is in this context that Section 139AA of the IT Act came into being: a statutory amendment that sought to (effectively) make Aadhaar compulsory for taxpayers.

Section 139AA was challenged before the Supreme Court. The Petitioners, led by senior counsel Arvind P. Datar and Shyam Divan, argued their case before a two-judge bench, over three days, followed by two days of arguments by the Union of India. Mr Datar is due to reply tomorrow, after which the hearing will conclude.

In this post, I will attempt to summarise and contextualise the key points of challenge.

Privacy Not Argued

If a case comes to the Supreme Court where the issues involved are substantially similar to another case that is already pending, the Court “tags” the latter case with the former, and hears the two together. This created a threshold problem for the Petitioners. The constitutional problems with Aadhaar remained the same, whether it was a challenge to the Aadhaar Act itself, or to the Income Tax Act making Aadhaar mandatory to file returns: basically, an alleged violation of the right to privacy. However, that question had been referred to a larger bench on 11th August 2015, and had not yet been heard. Consequently, it was a “pending case”, and according to convention, the Court hearing the challenge to the Income Tax Act would be obliged to “tag” it with the pending proceedings before the larger bench. So Petitioners had a choice: insist on their right to argue privacy, and have the case “tagged” with the pending challenge; or give up the argument on privacy, and attempt to convince the Court that Section 139AA was unconstitutional on other grounds.

Perhaps in view of the fact that the Supreme Court has effectively buried the Aadhaar challenge (three successive Chief Justices have refused to list it for hearing, despite multiple “oral mentionings” asking them to do so), Petitioners chose to go ahead with the challenge to S. 139AA without arguing privacy. This was made clear at the beginning of the hearing by Justice Sikri, who pointed out that there was no stay on Aadhaar in the case pending before the larger bench; at this, both Mr Datar and Mr Divan agreed that they would only argue the 139AA challenge on other grounds.

While Justice Sikri, sitting as part of a two-judge bench, was entirely correct in what he said (indeed, there was nothing else he could have said), the Supreme Court’s institutional disingenuousness here needs to be called out very clearly: as I have detailed in my post on judicial evasion, the constitutional challenge to Aadhaar Act has been pending for one year and eight months, with the Court – or rather, the Chief Justice – simply refusing to constitute the bench to hear it. In the meantime, the government has gone full steam ahead to create a fait accompli situation where the challenge becomes academic. Section 139AA is part of that broader program. By not allowing Petitioners to argue privacy on the ground that it was part of a pending challenge in which no stay had been granted because it had simply never been heard, the Court was – effectively – using its own refusal to hear the case as a reason to make the Petitioners fight this battle with one arm tied behind their backs!

The Arguments of Mr Arvind P. Datar

No Indirect Overruling of Judicial Orders

Mr. Arvind Datar’s first argument was that Section 139AA of the Income Tax Act amounted to an indirect legislative overruling of prior judicial orders stipulating that Aadhaar could only be voluntary. While Mr Datar conceded that Parliament was entitled to overrule a judicial decision or order by legislating to take away its very basis, he drew a distinction between direct overruling (by taking away the basis of a court order), and indirect overruling (the latter, he argued, was impermissible). Relying upon the judgments of the Supreme Court in Madan Mohan Pathak vs Union of IndiaIndian Aluminium Co vs State of Kerala, and Janapada Sabha Chindwara vs Central Provinces Syndicate Ltdhe argued that, in the present case, had Parliament simply passed a law mandating that every individual must have an Aadhaar Number, that would have been a legitimate response to the Court’s orders; however, while the Aadhaar Act continued to insist that getting Aadhaar was voluntary, Parliament had chosen to make it mandatory in a backdoor fashion, by inserting penal consequences for not having Aadhaar in the Income Tax Act. And in case of any doubt, “we should adopt an interpretation which upholds… rights.”

Article 14

Mr Datar argued that Section 139AA violated Article 14 of the Constitution because it drew an arbitrary distinction between assessees who were individuals (and therefore compelled to get an Aadhaar Card), and non-individual assessees (such as an HUF, or a company). If the objective of introducing Section 139AA was to use Aadhaar to check black money and fraud (which the Union claimed that it was), then the distinction between individual and non-individual taxpayers bore no rational nexus to the objective, and fell foul of Article 14. T

The bench asked the natural question: given that non-individuals could not, by definition, obtain Aadhaar cards, wasn’t an Article 14 challenge misconceived to start with? In other words, the Aadhaar Card requirement was a way to check black money and fraud specifically by individual assessees. To this, Mr Datar responded by arguing that there were twelve categories of assessees under the Income Tax Act. Section 139AA picked out one class (individuals), and imposed a burden upon them. This act of disadvantaging one class could only be justified under Article 14 if it had a rational nexus with a legitimate goal; but given that black money and fraudulent transactions were not only crimes committed by individuals, there was no rational nexus between the objective and the act of singling out individuals and making them suffer.

Mr Datar also argued that there was no evidence to show that compulsory Aadhaar would actually fulfil the goal of eliminating black money and preventing fraud (or “shell companies”). In fact, the UIDAI’s own statistics showed that there were likely many duplicate Aadhaar Cards; on the other hand, only 0.4% of all PAN Cards had been shown to be duplicate. Consequently, the State had no evidence to show that a shift from PAN to PAN + Aadhaar would actually serve the goal of eliminating black money and fraud.

Article 19(1)(g) 

Mr Datar argued that an individual without a PAN Card was prohibited from engaging in many transactions that were absolutely basic to life in contemporary society. These included buying or selling a motor vehicle and opening a bank account. A cancelled PAN effectively amounted to a “civil death”. It was, therefore, a violation of the freedom “to practise any profession, or to carry on any occupation, trade or business”, guaranteed by Article 19(1)(g) of the Constitution.

Once it was established that Article 19(1)(g) had been infringed, the burden shifted to the State to show that, under Article 19(6) of the Constitution, the restriction was reasonable, and in the public interest. In Modern Dental College vs State of M.P., a Constitution Bench of the Supreme Court had held that the correct test to apply under Article 19(6) was the test of proportionality. In a judgment authored by Justice Sikri himself, the Court held that “proportionality” involved a showing that the means chosen to achieve the “public interest” goal were themselves narrowly tailored; that is, Article 19(6) could not save a statute if it could be shown that some other method, which infringed rights to a lesser degree, could achieve the same goal. Mr Datar argued that – once again – in view of the fact that only 0.4% of all PAN Cards were found to be duplicate, and in view of Aadhaar’s own, widely publicised failings (using the UIDAI’s own data), it could not be argued that compulsory Aadhaar was a “proportionate” restriction upon the right under Article 19(1)(g).

Colourable Exercise of Power

Mr Datar concluded by arguing that Section 139AA amounted to a colourable exercise of legislative power. Solemn undertakings had been given by the Union of India to the Supreme Court that Aadhaar would remain voluntary. Aadhaar remained voluntary under the parent statute (the Aadhaar Act), but there was now a back-door attempt to make it mandatory through the Income Tax Act. In fact, the Statement of Objects and Reasons of the Aadhaar Act themselves made no mention of black money or fraud; Mr Datar argued that if Aadhaar was to be used for that purpose, then surely there would have been some indication of that in the parent statute. All these factors combined pointed to a clear colourable exercise of power. Mr Datar submitted that Section 139AA should accordingly be struck down as unconstitutional.

The Arguments of Mr Shyam Divan

Collision Between the Aadhaar Act and the Income Tax Act

Mr Shyam Divan argued that there was a “collision” between the Aadhaar Act and the Income Tax Act. The former made it clear that Aadhaar was to be a voluntary scheme. While the Government could make it mandatory for the purposes of availing of subsidies, it could not compel people to get an Aadhaar Number, simpliciter. The Income Tax Amendment, however, effectively compelled people to part with their biometric information and iris scans, on the pain of penal consequences. In other words, Section 139AA made mandatory what the Aadhaar Act guaranteed would be voluntary.

In response to the Bench’s observation, that surely it was open to Parliament to create two different statutory regimes – one in which Aadhaar was voluntary, and the other in which it was made mandatory for the purposes of paying Income Tax – Mr Divan argued that the Aadhaar Act and Section 139AA could not be viewed in isolation in such a manner. The Aadhaar Act was the parent statute: and everything in the Aadhaar Act suggested that, from the moment of enrolment, it was a purely voluntary exercise. Now, you could not engraft a scheme whose very basis was voluntariness and free consent, into the Income Tax Act, and make it mandatory. It was in that sense that the procedures under the Aadhaar Act and the Income Tax Act were “in collision”.  Mr Divan therefore invited the Bench to read down Section 139AA of the IT Act by interpreting the word “shall” as “may”; or, in other words, convert the mandatory requirement under 139AA into voluntariness, in order to bring the Aadhaar Act and Section 139AA into harmony.

Article 14

Mr Divan’s case under Article 14 was different in important respects from Mr Datar’s. While Mr Datar had drawn a distinction between individual and non-individual assessees, Mr Divan drew a distinction between individual assessees who consented to getting an Aadhaar Card, and other individual assessees who didn’t. He argued that Section 139AA drew a distinction within this homogenous class of persons, and disadvantaged the latter. Now, in view of his previous submission – that the parent Aadhaar Act made it clear that Aadhaar was voluntary – drawing a distinction between those who had chosen to get an Aadhaar Card, and those who would now be required to get an Aadhaar Card to pay their taxes, and placing a burden upon the latter – constituted ex facie discrimination. In other words, the statute’s very purpose was discriminatory, on its face (which, according to the judgment of the Supreme Court striking down S. 6 of the DSPE Act, was impermissible). Hence, there was no need to go into questions of classification and nexus: the amendment was presumptively unconstitutional under Article 14.

Bodily Integrity

Mr Divan argued that biometric information and iris scans belonged to the individual. They were, effectively, part of the individual’s body. He cited a range of thinkers, from Hobbes and Locke on the one hand, to Salmond and Rawls on the other, to argue for the individual’s absolute ownership of her body, and her right to bodily integrity under Article 21 of the Constitution. What, he asked, did Article 21 protect, if it did not protect the body?

Justice Bhushan pointed out that at the time of issuing a passport, similar information was taken from the individual. Mr Divan argued, however, that while it was permissible to take such information for limited and narrow purposes (for instance, for the purposes of identifying an individual in case of an emergency while she was abroad), and where there was a compelling State interest, those conditions were not satisfied in the present case. Mr Divan also invoked the 1920 Identification of Prisoners Act to argue that even in pre-Constitutional, colonial statutes, information that had to do with the body was collected only in very specific circumstances, and only for a very narrow set of purposes, where it was absolutely necessary to do so. Even a refusal would only lead to an adverse inference. That manner of necessity had not been demonstrated in the present case – especially in light of the fact that Aadhaar was suffering from numerous problems of duplication and public leakages (instances of which were cited to the Court).

In sum, Mr Divan argued that fingerprints and iris scans belonged to the individual, as integral parts of her body. They could not be “nationalised” or “expropriated” by the State without express consent, unless there was a compelling State interest, and the infringement was narrowly tailored. The argument of compelling State interest and narrow tailoring may justify, for instance, the taking of DNA or blood samples in certain limited circumstances (this was in response to a question from Justice Bhushan), but certainly did not permit the kind of 24/7 tracking system established by Aadhaar. What Aadhaar was doing, Mr Divan argued, was fundamentally changing the nature of the relationship between the individual and the State; it was shifting the balance of power between individual and State to the extent that it ended up betraying the promise of the Constitution to establish “limited government”. The Constitution, he argued, was not a “charter of servitude“; it envisaged free individuals, whose bodies could not be invaded without their express consent. He relied upon the judgments of the Supreme Court in Sunil Batra vs Delhi AdministrationNALSA vs Union of India and Aruna Shanbaug vs Union of India, to highlight the importance of bodily integrity under Article 21 and the constitutional scheme.

Personal Autonomy and Informational Self-Determination

Mr Divan argued that in the digital age, the right to informational self-determination had become a crucial facet of the right to personal autonomy, and was protected under Articles 14, 19, and 21 of the Constitution. The principle of informational self-determination – which had its origins in German constitutional doctrine, with the Population Census Case, and had now been accepted in both Canadian and South African Constitutional law – stipulated that an individual had the right to limit what she put out to the world about herself. Its basis was not privacy, but the principles of dignity and personal autonomy, both of which were long recognised under Indian constitutional doctrine. Informational self-determination was essential for the free development of the individual. Moreover, it was not simply an individual right: likewise, the free development of the individual was essential to constitute a free and democratic society, and a free and democratic communicative order.

In the case of Aadhaar, Mr Divan argued, the principle of informational self-determination was specifically compromised because data was required to be handed over to private parties. These private parties’ only accountability was in the form of a “Memorandum of Understanding” with the government; there were minimal data protection safeguards imposed upon them, and indeed, 34,000 such independent operators had been blacklisted by the government. In fact, the MoU’s allowed the registrars of these entities to retain biometric data with them, something that could have potentially devastating consequences. In sum, compelling the handing over of personal data to private parties with such minimal safeguards over their functioning amounted to “a complete destruction of personal autonomy [and] a debasement of… [the] right to informational self-determination.”

Compelled Speech

Mr Divan then argued that compelled extraction of demographic information in Aadhaar – and even more, compelled extraction of biometric data and iris scans – effectively amounted to compelled speech, which was an infringement of Article 19(1)(a) of the Constitution. In the case of Bijoe Emmanuel vs State of Kerala, the Article 19(1)(a) rights of Jehovahs Witnesses to not be compelled to sing the national anthem had been recognised by the Supreme Court. The Jehovahs’ Witnesses, argued Mr Divan, were willing to stand up and respect the national anthem, but not to sing it; similarly, non-Aadhaar tax payers were willing to respect the law of the land and pay their taxes – only not by parting with their biometric and demographic information.

Proportionality

Mr Divan reiterated Mr Datar’s argument that, in view of the Government’s own data that only 0.4% of PAN Cards were duplicates, this move was simply disproportionate.

Legislative Competence 

Mr Divan argued that there was no legislative entry in the Seventh Schedule that allowed for a right of “eminent domain” over the individual body. Consequently, the State was barred from “nationalising” the individual’s fingerprints and biometric data, except in the narrowest of circumstances. At best, the State could act as a “trustee”, or a “fiduciary”, of a person’s property in themselves. It could not compel beneficiaries to permanently part with it, especially in view of the fact that giving up one’s fingerprints and iris scans was a permanent act. Under the Constitution, the State could not simply take that data and store it in a centralised database.

Conclusion

Mr Divan ended by arguing that Section 139AA had serious impacts on the freedom of trade and commerce, the freedom of speech and expression, and the freedom of association (one could hardly form associations without a bank account). He argued that what the Union of India was doing was effectively a bait-and-swith, in the mould of Humpty Dumpty in Alice Through the Looking Glass, who had stated that a word meant exactly what he said it meant: the Union was doing something similar with the “mandatory voluntary” nature of Aadhaar.

In view of all of that, he requested the Court to strike down or read down the Section. However, he had an alternative prayer as well: in case the Court felt that the privacy and non-privacy issues in the case were inseparable, then they could refer and “tag” the case with the pending hearing; however, in view of the fact that the situation would become irreversible after July 1 (the day the amendment would come into effect), at the very least, he requested the Court to stay the provision, or prohibit coercive action by the State to implement it, until the final decision. All the previous orders of the Court had recognised the gravity of the situation, and protected status quo.

(Disclosure: The author assisted Mr Datar in the constitutional challenge before the Court.)

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Filed under aadhaar, Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Privacy

T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage Act, which allowed the Court to pass an order for ‘restitution of conjugal rights.’ In simple language, if the Court was convinced that either a husband or a wife had ‘without reasonable cause, withdrawn from the society‘ of their spouse, then it could decree that the defaulting spouse was required to go back to the company of their partner – a decree that could be enforced by attaching the defaulter’s property. Justice Choudary held that Section 9 violated the rights to equality and privacy under the Constitution, and was accordingly void. Within five months, the Delhi High Court handed down a judgment disagreeing with this conclusion. And a little over a year later, the Supreme Court affirmed the judgment of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing reference in discussions about the restitution of conjugal rights. This is a pity. Sareetha was one of those rare cases in Indian constitutional history where a Court understood the Constitution as a radically transformative document, and struck out in a direction that was unfamiliar, bold, and creative – while remaining constitutionally tethered. Its interpretations of equality and privacy anticipated similar developments in other jurisdictions by years, or decades; and in some respects, it is still ahead of the time. Quite apart from the actual decision, it is its reasoning that constitutional lawyers should not forget; because even though the Supreme Court overruled the judgment, and perhaps closed off the window to a certain kind of legal change, Sareetha’s reasoning remains a template for other cases that might attempt to shape equality and privacy in an emancipatory and progressive direction.

Polis and Oikos: The Privacy of the Ancients

To understand the radicalism of Sareetha, we need to begin at the beginning. The distinction between the public and the private sphere, which is one of the most controversial issues today, and which was at the heart of Sareetha, had its origins in classical Athens.  As Don Slater writes, “The public sphere – the polis or res publica – was the realm of free association between citizens. Men [and only men] were deemed free in the polis not because it was unregulated, but because it was kept rigidly separated from the private sphere of the household and the domestic economy (oikos): the domestic sphere was regarded as the realm of mere physical reproduction, and therefore of the compulsion and slavery of needs.” In her book, The Human Condition, Hannah Arendt records that the public sphere (which Humphrey’s defines by its ‘impersonality’) was the arena of “equals” – men, who came together to debate and discuss issues affecting their City-State were neither “to rule, nor to be ruled.” In fact, the very idea of ‘rule’ was at odds with the idea of the polis. In the oikos, on the other hand, the male head of the household had absolute dominion over his slaves, the women, and the minor children. It was these who would ensure the satisfaction of his bodily needs, thus liberating him from ‘necessity’, and freeing him to participate in the public sphere with other, equally situated men.

The public/private divide, therefore, mapped on to the dichotomy between freedom and necessity, equality and inequality. The claims of equality were restricted to the public sphere (polis), and simply weren’t applicable to the household (oikos), which was defined by its inequality.

Public and Private: The Privacy of the Moderns

The public/private divide largely disappeared during feudal times (the manorial households, in a sense, came to embody characteristics of both spheres), and then made a reappearance after the Enlightenment and the revolutionary era. The modern era – Arendt argues – saw economic activities and market transactions taken out of the domain of the private sphere, which was now defined as the site of intimacy, or intimate relationships. At this time, as Seyla Benhabib records, the American and French Revolutions had brought into public consciousness the ideas of basic rights, and the idea of autonomy. Quoting the philosopher Lawrence Stone, she observes that:

“… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by nonconsensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.”

Unlike the Ancients, who accepted that the private sphere was essentially inegalitarian, the moderns held that it was simply not subject to the claims of equality. Benhabib further points out that “power relations in the ‘intimate sphere’ have been treated as though they did not even exist.” It is this idea of privacy that culminated in judicial holdings in the 20th century that viewed privacy as a question of a space of seclusion, a space that the State could not enter. After Warren and Brandeis wrote their famous article at the end of the 19th century, viewing the right to privacy as a right to seclusion, or a right to be let alone, the American Supreme Court held that the right extended to “areas” where there was a “reasonable expectation of privacy.”

It was this spatial concept of privacy that was strongly criticised by feminist legal scholars over the second half of the 20th  century. In light of the fact that the “private sphere” is itself a hierarchically structured space, Martha Nussbaum points out that “recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.” A classic example of this is the marital rape exception which deems that forcible sexual intercourse within the marital relationship does not amount to rape.

Community and Individual: Privacy in Colonial India

In colonial India of the late nineteenth century, where – in the words of historian Tanika Sarkar, there first began to emerge a “pre-history of rights“, privacy took on yet another form: here, it became the right of communities to determine certain issues – including the treatment of women – free from the interference of the colonial State. Tanika Sarkar, Lata Mani, Partha Chatterjee, and other scholars recount the debates around the abolition of Sati, the raising of the Age of Consent, and indeed, on restitution of conjugal rights. Chatterjee notes, for instance, that “the so-called women’s question in the agenda of Indian social reform in the early 19th century was not so much about the specific condition of women as it was about the political encounter between a colonial state and the supposed “tradition” of a conquered people.” In other words, community “traditions”, which centrally involved the rights, positions, and social roles of women, were deemed to be off limits, since they came to represent, or embody, the “inner life” of the community. So the idea of privacy (although it was not framed in so many words) became connected with group rights; or, it was groups that – as bearers of value in themselves – that became the holders of something like a right to privacy.

The Ambiguity of Gobind v State of MP

Therefore, when the Indian Supreme Court began to take up issues relating to the right to privacy, it was adjudicating in the context of a number of different – although somewhat complementary – traditions. The case that first held that there existed a constitutional right to privacy in India reflected this problem. In Gobind v State of MP,  the Supreme Court held, in sphinx-like tones, that:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

As I have noted before, part of the reason why this definition sounds confusing is that it was lifted by the Supreme Court from an American decision delivered in an entirely different context – that of adult theatres. In any event, a quick reading of this sentence reveals at least four possible underlying themes:

(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all the terms that follow it refer to activities normally undertaken within the home

(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the family, marriage, and motherhood are all social institutions. The right to privacy, then, protects the sanctity of these institutions by insulating them against State interference.

(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered nature of the division).

(d) An individualistic idea of privacy that focuses upon bodily integrity and decisional autonomy: a few years before Gobind, the American Supreme Court in Griswold v Connecticut and Roe v Wade  had upheld the right to contraceptives and the right to abortion, on grounds of privacy; privacy, here, refers to the right of the individual to make her own choices about decisions that directly affect her bodily integrity.

As we can see, while the first three interpretations reflect the various conceptions of privacy discussed above, the fourth marks something of a break. In Sareetha, the Justice Choudary would take this fourth idea, and use it to develop a transformative vision of privacy.

Sareetha; Reasoning and Outcome

A. Privacy as Individual Dignity

Justice Choudary held that “a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.” According to him, at the heart of the issue was the fact that the law, essentially, was a law compelling sexual intercourse. “The consequences of the enforcement of such a decree”, he observed, “are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.” 

Notice, however, that the law itself does not require sexual intercourse. It only authorises a decree for cohabitation, which can be enforced through attachment of property. This is why Justice Choudary spoke of the consequences of enforcing a decree – and it is here that we see the first major break with traditional conceptions of privacy. Because Justice Choudary was not content simply to end his enquiry at the point of cohabitation – but to go further, to find that given the deeply unequal structure of the family, and given the myriad pressures – not simply physical, but of every other kind – that could be brought to bear upon a woman who is shorn from the protection of her own family, a decree for cohabitation would, in all likelihood, lead to compelled intercourse. Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed that “what could have happened to Tarabai thereafter may well be left to the reader’s imagination.” This, for him, was completely unacceptable, because:

Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

And for a women, who would be the one to conceive, “in a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.” Here, for the first time, we see a vision of privacy that focusses upon a combination of bodily integrity and decisional autonomy. Soon afterwards, Justice Choudary cited Gobind, and then focused on one particular line in Gobind:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

Latching upon the concept of privacy-dignity (and dignity, it will be noticed, speaks to the individual), Justice Choudary then noted “any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”

This is a crucial observation, since it completely rejects the view that the site of privacy claims are social institutions, such as the marriage or the family, and accepts, instead, the opposite claim that the right-bearer is the individual. Privacy, therefore, is to be understood not as an exalted space within which the State cannot enter (no matter what happens within that space), but as a right accorded to each individual, which guarantees her autonomy in all fundamental decisions concerning her body.

B. Justice Brandeis and the Balance of Power

Interestingly, during the course of his argument, Justice Choudary also referred to Justice Brandeis’ dissenting opinion in the case of Olmstead vs New York.  Olmstead was a 1928 American Supreme Court decision concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to  prohibiting illegal searches of “persons, houses, papers, and effects”. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:

“When the Fourth and Fifth Amendments were adopted, “the form that evil had theretofore taken” had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “the sanctities of a man’s home and the privacies of life” was provided in the Fourth and Fifth Amendments by specific language. But “time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis’ basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, lest we arrive at a totalitarian society in which State power has completely overwhelmed the individual.

The innovation in Sareetha is that it takes Brandeis’ idea of a parity of power between individual and State, and extends that to apply horizontally, in the private realm. The link between cohabitation and compelled intercourse is based upon a difference in power: and Sareetha’s striking down of S. 9 is a Brandeisian attempt to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about – in the smallest of ways possible – a democratisation of the private sphere.

C. Article 14 and Indirect Discrimination

Justice Choudary’s last argument was with respect to Article 14. Section 9, of course, was facially neutral: the remedy, in theory, was open to both husbands and wives. But, Justice Choudary held, ” “Bare equality of treatment regardless of the inequality of realities   is neither justice   nor homage to the constitutional principle”… the question is how this remedy works in life terms In our  social reality, this matrimonial remedy   is found used almost exclusively by the husband  and is rarely resorted to by the   wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this   fact…  the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s  future  plans of life and prevents her from using that self-destructive remedy… The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this   matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

On this blog, we have often discussed the question of whether, to prove discrimination, once must show that the law was intended, or had a motivation to, discriminate; or is it adequate to show that the law, although neutral in its terms, has a disproportionate impact upon a certain group of people. The former views discrimination as a result of a discrete, intentional act; the latter, as the result of long-standing structures and institutions. The former understands social realities as independent of law, providing a neutral background within which law operates; the latter insists that these social realities are always constructed by, and complementary to, the legal system – and that therefore, laws which reproduce or endorse such social realities are equally suspect (or, in the words, of Justice Albie Sachs, the purpose of a Constitution is to transform “misfortune to be endured into injustice to be remedied“). In his analysis of the differential effects of Section 9 based upon a social reality that placed the cost of child-bearing and rearing disproportionately upon women, Justice Choudary firmly endorsed the latter, more nuanced understanding, of equality.

The Radicalism of Sareetha

We are now in a position to understand the full extent to which Sareetha was a transformative and radical judgment. In specifically applying Article 14 to the private sphere, Justice Choudary repudiated the privacy of the Ancients, according to which equality was a value only in the public sphere. In specifically invoking the power hierarchies and inequalities in the private sphere to justify his decision, he repudiated the spatial conception of the privacy of the moderns, that turns a blind eye to the realities of domination and subordination within the home. In invoking Justice Brandeis, he brought the idea of maintaining an egalitarian balance of power between State and individual into private relationships, and took a small step towards the democratisation of the private sphere. And in finding an Article 14 violation, he advanced a view of equality that was grounded in structures and institutions, rather than individual acts. One may disagree with his final conclusion – and in fact, Flavia Agnes, among others, has made arguments defending S. 9 – but the reasoning remains powerful, and a clarion call for a progressive vision of privacy and equality.

Aftermath

Soon after Sareetha, the Delhi High Court came to the opposite decision. In Harvinder Kaur v Harmender Singh Chaudhary, it held that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act 1970. on the recommendation of the Law Commission headed by Justice Sharman is no ground to hold that it is unconstitutional in the Indian set-up. In the home the consideration that really obtains is that natural love and affection which counts for so little in these cold courts. Constitutional law principles find no place in the domestic code.” 

In its blanket refusal to apply equality and privacy to the “home”, the Delhi High Court reinstated the traditional, spatial view of privacy, that closed off a physical space from State intervention. This was upheld by the Supreme Court, which also added that “the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself” – thus reinforcing the position that the sanctity of privacy is accorded not to the individual, but to the institution of marriage.

Conclusion

Sareetha, undoubtedly, was buried thirty years ago, and cannot be brought back to life. But while a judgment remains in ashes, its arguments can certainly become phoenixes and rise again. Justice Choudary’s insights are relevant for the ongoing struggle against the non-criminalisation of marital rape, against numerous inequitable provisions in personal law codes, and for the continuing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, abortive, effort was made in Naz Foundation, which was also overruled). At the very least, Sareetha should not be forgotten: it should remain in historical memory as a landmark of Indian constitutional law, taught and discussed as a brilliant – if unsuccessful – attempt at radically transforming our constitutional jurisprudence of privacy and equality.

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Privacy and Bodily Integrity – I: Compelled Medical Evidence under S. 112 of the Evidence Act

Previously on this blog, we have discussed  the constitutional right against self-incrimination in the context of intrusive interrogation techniques, such as narco-analysis, polygraph tests and brain-mapping, and how they impinge upon the citizens’ informational and mental privacy. In particular, we saw how the Supreme Court’s jurisprudence has tracked two distinct ideas, or purposes, that could underlie Article 20(3) of the Constitution, which guarantees the right against self-incrimination: a crime-control model, which takes the goal of the criminal law to be efficient and accurate fact-finding, and therefore tolerates only those procedural safeguards and limitations that can contribute to discovering the truth; and a due process model, which views procedural safeguards as essential to protect citizens’ basic rights against an increasingly ubiquitous and intrusive State.

Within this conceptual framework, consider S. 112 of the Evidence Act, which states:

“Birth during marriage, conclusive proof of legitimacy — The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Under S. 4 of the Evidence Act, conclusive proof of a fact precludes any evidence from being given for the purposes of disproving that fact. In other words, it is an irrebuttable legal presumption.

What might be the basis for creating such a presumption? Consider the following argument: the privacy of marriage and the family (as upheld by Gobind vs State of Madhya Pradesh to fall within Article 21) would preclude judicial cognisance of evidence for or against paternity, since that question is quintessentially within the domain of the family. But that, in itself, doesn’t explain why there is a presumption of legitimacy.

Perhaps, though, the underlying rationale of the Section isn’t about maintaining the privacy of family life, but the privacy of information that is deeply personal to the child. Cognisant of the social stigma that accompanies a declaration of illegitimacy, the Section states that whatever might be the actual state of affairs, in the absence of a narrowly circumscribed range of exceptions, the child will be presumed to be legitimate. Alternatively, consider still another justification: in 1872, when the Evidence Act was drafted, there was no way of proving paternity. Blood samples and DNA tests were unknown. Consequently, perhaps the Section acknowledges that fact, and fixed a presumption on the side of the more likely, and administratively more efficient, outcome – that of legitimacy.

As we can see, the former rationale closely approximates the due process model, with its focus on protecting individual rights. The latter, on the other hand, is closer to the crime-control model (albeit in a civil context), as it is motivated by concerns about the truth. This is not a theoretical debate because, as we shall see, the underlying purpose of S. 112 becomes relevant in contemporary times, when it has become possible to ascertain parentage and legitimacy by using scientific methods, such as DNA tests.

The first Supreme Court case to examine the issue in detail was Goutam Kundu vs State of West Bengal (decided in 1993). The appellant and the respondent were married. The respondent went to her parents’ house to study for her exams, during which time she conceived (despite pressures from her in-laws to have an abortion). She applied for – and was granted – maintenance. The Appellant filed a criminal miscellaneous petition asking for a blood test to prove paternity. He argued that if it was proved that he was not the father of the child, he would not be obliged to pay maintenance. His petition was rejected by the High Court and, consequently, he approached the Supreme Court.

The Supreme Court commenced by observing that unlike in the United Kingdom and the US, there was no statutory authorisation granted to the Courts, to direct the taking of blood samples. It then cited the 1975 Kerala High Court judgment of Vasu vs Santha, where the Court had provided two rationales for S. 112: first, for “considerations of public policy… there are a variety of reasons why a child’s status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England to protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court.” And secondly, “before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful… the maximum that can be done where a party refuses to have a blood test is to draw an adverse inference.” Both these reasons, very obviously, are located within the due process model, focusing on informational privacy (avoiding social stigma) and bodily privacy interests.

The Court then noted that a “rebuttable presumption” existed that a child born during wedlock was legitimate, and that “access occurred between parents” – a presumption that could be displaced only by a “strong preponderance of evidence.” Notice that this is not entirely correct: there is a rebuttable presumption of access, where the onus is upon the one challenging paternity to displace it, but in case he cannot do so, there is then an irrebuttable presumption of legitimacy.

In the present case, since there was no evidence showing non-access, the Court declined to order the blood test. In conclusion, it laid down five principles: first, that a court could not order a blood test “as a matter of course“; secondly, that a request for a blood test as part of a “roving enquiry” would not be entertained; thirdly, that there would have to be a “strong prima facie case“, i.e., the husband must establish non-access in order to displace the presumption; fourthly, the Court would examine the consequences of ordering the blood test, and whether “it will have the effect of branding a child as a bastard and the mother as an unchaste woman“; and lastly, nobody could be compelled to give a blood sample for analysis (based, as we have discussed above, upon the right to bodily liberty/privacy). Presumably though, as held in previous cases, an adverse inference could be drawn upon refusal.

While much of this sounds straightforward and sensible, there is a curious slip between the third and the fourth principles. In the third, the Court correctly holds that in order for the question of a blood test even to arise, the husband must establish non-access, so as to refute the irrebuttable presumption of legitimacy. But the Court then also holds that it would examine the consequences of passing such an order, based upon concerns relating to informational privacy. Yet consider this: if the purpose of the irrebuttable presumption of legitimacy was to preserve the informational privacy of the child and mother, and save them from social stigma, then the consequences of allowing any kind of evidence (including a blood test) to be led, had already been considered by the legislature while drafting S. 112. In other words, the balance between protecting individual privacy, and ascertaining legitimacy (with all its attendance adverse consequences for the wife and child) was already written into the text of the statute, through a two step procedure, the first of which required the husband to prove non-access, and the second of which barred any evidence from being led on the question of legitimacy, if he could not do so. But if that was the case, then the Court was not entitled to re-open a question that had already been settled by the legislature. By considering the “consequences” of ordering a blood test (in light of its impact upon privacy), the Court was balancing the same concerns that had already been balanced while drafting the statute.

Consequently, the only way to reconcile the Court’s dictum with statutory interpretation is to hold that the irrebuttable presumption of legitimacy speaks not to the protection of privacy, but to the ascertainment (or, in 1872, the inability of ascertaining) the truth. Under this interpretation, the Court was then adding an additional layer of judicially-evolved safeguards by holding that even in cases were non-access was proved, the consequences of allowing evidence to be led (in terms of their impact upon individual privacy) would be judicially assessed, before any order could be given. But as we shall see, the failure of the Court to lay out a clear conceptual foundation underlying the scheme of 112 would eventually lead to a conflicted jurisprudence.

 

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