The (Continuing) Doctrine of Judicial Evasion in the Aadhaar Case

On this blog, I have argued before that the ongoing Aadhaar litigation provides an example of the Supreme Court’s evolving doctrine of “judicial evasion”: faced with a dispute between individual and State that involves wide-ranging ramifications on civil and constitutional rights, the Court’s response is not to decide it one way or another, but to simply refuse to hear it at all. While legally this keeps the position of the parties at status quo, at the same time, it permits the State to take all steps on the ground to achieve a fait accompli that effectively makes the case academic and infructuous. In other words, by not deciding, the Court is, in effect, deciding in favour of the State, but without the public accountability that comes with the existence of a written, reasoned judgment.

The doctrine of judicial evasion ensured – as I pointed out in my posts about the Aadhaar/PAN litigation – that in the one constitutional challenge to Aadhaar that the Court did hear, the Petitioners had to argue as if they were playing a tennis match with one arm and one leg tied behind their backs. And today’s order – in Shanta Sinha vs Union of India – is another excellent example of how, by applying this doctrine, the Court has fundamentally abdicated its constitutional responsibility to protect the rights of Indian citizens.

Recall – yet again – the background. On 11th August 2015, after the Union of India argued that there was no fundamental right to privacy under the Indian Constitution, the three-judge bench of the Supreme Court referred the challenge to the Aadhaar scheme (at that point, a voluntary, executive scheme) to a larger bench for decision. The Court clarified that, pending the final decision, Aadhaar could not be made mandatory for availing of subsidies or benefits, and it recommended that the case be heard on an urgent basis. A Constitution Bench met in October 2015 to extent the list of subsidies for which Aadhaar could be used; after that, the case has not been heard, despite numerous attempts to “mention” it before the Chief Justice, and have it listed. It has been one year and nine months since the referral order.

In the meantime, the Union of India has gone full steam ahead with Aadhaar. In 2016, it passed an Aadhaar Act, providing statutory sanction to the scheme. Section 7 of the Act authorised the government to make Aadhaar mandatory for subsidies or benefits, which were paid out of the Consolidated Fund. Under the ostensible cover of Section 7, a number of notifications have been passed, making Aadhaar mandatory for a whole range of crucial, life-sustaining benefits: from schoolchildren’s midday meals to compensation for victims of the Bhopal Gas Tragedy.

Before the Supreme Court today, then, the case for the petitioners in Shanta Sinha vs Union of India was simple: seventeen notifications under the authority of S. 7 of the Aadhaar Act, which made Aadhaar mandatory for crucial subsidies and benefits, were illegal, and Section 7 itself was unconstitutional. Moreover, the case was one of utmost urgency: in most of these notifications, the last date for applying was June 30. Given that the Supreme Court was closing for the vacations today, unless some orders were passed, the case would become entirely infructuous. People entirely dependent on these subsidies for their basic survival would have no choice but to enrol for an Aadhaar number, whether they wanted to or not.

To this, the Court’s only response was to decline to hear the case, because the constitutional challenge to the Aadhaar Act was already pending before the Constitution Bench – the same Constitution Bench that had not been set up for a year and nine months, despite every attempt by numerous petitioners to persuade the Chief Justice to do so. Instead, it tagged this challenge to the already pending challenge before that Constitution Bench. Petitioners’ arguments that they would not rely upon the right to privacy – which was the reason why the referral had happened in the first place – had no impact.

Petitioners then requested the Court to at least hear the case on the issue of interim reliefs because – as pointed out above – the entire case would become infructuous by June 30. To this, the Court responded that the Petitioners could only raise the plea of interim reliefs before the Constitution Bench – that same unicorn Constitution Bench that nobody had seen a hoofprint of since August 2015. The Court then said that the Petitioners ought to approach the Chief Justice and mention this – the same Chief Justice who had publicly refused to list the case on a prior mentioning.

Needless to say, there’s going to be no Constitution Bench before June 30. In short, the Supreme Court has effectively decided the validity of seventeen notifications that make Aadhaar mandatory for accessing crucial services in favour of the government without hearing a single argument, not even arguments on an interim stay.

Presumably, judges of the Supreme Court do not live in individual silos. The two-judge bench of Justices Sikri and Bhushan who heard today’s case was surely aware of the non-progress of the Aadhaar case through the Supreme Court over nearly two years. Surely it was aware that there was going to be no listing of anything any time soon. And so, surely these judges knew that by “tagging” this case to the existing challenges before the mythical Constitution Bench, the effect was nothing other than to decide the case in favour of the government.

I have said before that the only proper description of the Supreme Court’s conduct in the Aadhaar case is institutional disingenuousness. In refusing to set up the Constitution Bench to hear Aadhaar, while simultaneously setting up three Constitution Benches in the vacations to hear three other cases (none of which carry the same urgency as this one) and in “tagging” new challenges to the main challenge that is never heard, thereby burying them as well, the Court has effectively ruled in favour of the government on Aadhaar without allowing the petitioners to argue their challenge, and without writing a reasoned judgment that would be subject to public scrutiny.

This, to me, seems nothing less than an abdication of constitutional responsibility through the doctrine of judicial evasion.

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Filed under aadhaar, Access to Justice, Article 21 and the Right to Life, Judicial Evasion, Privacy

Personal Laws and the Constitution: Why the Tripal Talaq Bench should Overrule State of Bombay vs Narasu Appa Mali

(From this Thursday, a Constitution Bench of the Supreme Court will hear arguments about the constitutionality of the Muslim personal law practices of triple talaq, nikah halala, and polygamy. In this guest post, Praharsh Johorey argues that in doing so, the Court ought to overrule the long-standing precedent of State of Bombay vs Narasu Appa Mali, which exempts personal laws from constitutional scrutiny.)

On the 11th of May, the Supreme Court will begin hearing arguments on the petition concerning – among other things – the constitutionality of the Muslim divorce process commonly known as the ‘Triple Talaq’.

Before the Court, a number of interveners have canvassed a wide range of propositions. In this post, however, I shall focus on the specific issue of “instant Triple Talaq” (where a man can divorce his wife by unilaterally uttering the word “talaq” thrice in succession), and proceed on the assumption that such manner of divorce is illegal and unconstitutional. Now, in order to declare it unconstitutional, the Supreme Court can do one of two things. First, it can adopt a narrow approach in accordance with J. Krishna Iyer’s plea in A. Yousuf Rawther v. Sowramma, and hold that the instant Triple Talaq practice is not part of Muslim Personal Law and therefore excluded from the Muslim Personal Law (Shariat) Application Act, 1937. Second, it can take the broader approach, and subject all personal law to the test of Constitutional validity, and principally determine the constitutional validity of the practice. To take the broad approach, however, it will have to overrule a 1951 Bombay High Court judgement State of Bombay v. Narassu Appa Mali, which held that personal laws are not subject to the rights enumerated under Part III of the Constitution.

In this post, I will be dealing specifically with the Narasu judgement, and the need for the Supreme Court to overrule this deeply problematic constitutional pronouncement.

Narasu Appa Mali

The central question in Narasu related to the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946. The primary contention against the Act was that it was in breach of Articles 14 (Right to Equality) and Article 15 (Prohibition of Discrimination), because the law discriminated between a Hindu and a Muslim male with respect to their respective rights (or lack thereof) to engage in polygamy. Article 25 (Right to Freedom of Religion) was also argued, on grounds that this Act infringed with the right of Hindus to practice polygamy, which was argued as forming part of Hindu custom.

However, under the Constitution only a ‘law’ or a ‘law in force’ as defined in Article 13, which invalidates all laws that are in derogation of fundamental rights, can be subject to the rights under Part III. Therefore prior to examining the aforementioned contentions, the Court undertook to answer the more fundamental question of whether Personal Laws (such as the Act in question) are ‘laws’ or ‘laws in force’ under Article 13.

The Division Bench of C.J. Chagla and J. Ganjendragadkar unanimously answered in the negative, with both judges giving somewhat distinguishable reasoning for their decision. I will examine both separately.

Personal Laws as ‘Laws in Force’

Justice Gajendragadkar’s justification is based on a narrow interpretation of Article 13, stated in paragraphs 19 and 20 of his separate opinion:

‘The expression ‘laws in force’..refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India. 

His argument thus proceeds on two grounds. First, that Article 13(1) only contemplates statutory laws, and second, that personal laws cannot be considered statutory law and are therefore outside the scope of Article 13.

Now, to understand the scope of ‘laws in force’ under Article 13(1), we must first look to Article 13(3)(b), which defines the term:

“… ‘laws in force’ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

Respectfully, J. Gajendragadkar’s interpretation is in direct conflict with the wording of 13(3)(b), as it employs the term ‘includes’ in the definition of the term ‘laws in force’, thereby broadening its scope. J. Agarwal, in P. Kasilingam v. PSG College of Technology states that the word ‘includes’ enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also the things as the clause says they shall include. More recently, J. Jain in Bharat Cooperative Bank (Mumbai) v. Employees Union agreed with the dictum of Kasilingam, by holding that ‘includes’ makes the definition enumerative, in that the term defined will retain its ordinary meaning but its scope will be extended to bring within it matters, which in its ordinary meaning may or may not comprise.

Applying this to the interpretation of the definition of ‘laws in force’ under Article 13(3)(b), the ‘ordinary’ or ‘natural’ import of the term must be given effect to. As per its dictionary meaning, a ‘law in force’ is any principle to which parties are legally bound, and which can be relied upon by a Court to resolve disputes. Interestingly, J. Gajendragadkar’s attributes all of these facets to ‘personal law’ in India, stating:

‘There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview.’ However, the expression ‘ laws in force’ is, in my opinion, used in Article 13(1) not in that general sense.’

It remains unclear what specific import he sought for the term ‘general’ to have in this context, and no clear reasoning as to why he resultantly narrows the scope of Article 13. This interpretation is plainly not supported by the enumerative wording of Article 13(3)(b), and it is his own characterisation of personal laws that places it well within the scope of the ordinary meaning of ‘laws in force’.

Even if one were to accept the contention that Article 13(1) is limited only to statutory pronouncements, for the Narasu dictum to withstand scrutiny, it must be established that there exists a clear distinction between ‘law’ under Article 13 and personal laws. To this end, J. Gajendragadkar states:

It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural texts.

‘…the duty of a Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal. In fact, the different schools and sub-schools of Hindu law which are recognised by our Courts are distinguished solely on the ground of the different texts to which they owe allegiance.’

This argument proceeds on the contention that personal laws are based upon an untrammelled application of the scriptural texts ‘to which they owe their allegiance.’ However, this reasoning ignores the significant role played by the Judiciary and the Legislature in moulding religious texts in light of modern constitutional principles – which have in several instances been accepted by the schools that are responsible for their application. As a result, the High Court’s singular premise for excluding personal laws from Article 13 is unfounded.

The Evolution of Personal Law in India

‘We ought not to be guided by Hindu law, which is a new introduction of our own.’

  • Mountstuart Elphinstone,

This contention can be demonstrated through an examination of how personal law came to be defined by religious practice in the colonial era. The British administration took upon itself the duty of both defining and adjudicating personal law, which required that it determine which practices would constitute law, and which would simply have social force. (Sturman, 2012) For this purpose, Courts, the Privy Council in particular, developed a three-step test to determine what constituted religious custom – that any principle must be ancient, invariable and supported by clear evidence. This made the establishment of any custom invariably difficult, leading to the greater homogenisation and enforcement of Brahmanical law by Courts, irrespective of the diverse religious leanings of parties to a dispute. (Sturman) The British insistence on ‘clarity, certainty and definitiveness’ was alien to Hindu and Islamic traditions, whose traditions and custom were ‘not of a nature to bear the strict criteria imposed by British lawyers.’ (Galanter, 1968) The establishment of the High Courts in India in 1864 also rendered null the position of ‘law officers’, like Shastris and Maulvis, who were responsible for offering textual interpretations and opinions pertaining to personal law.

This process also replaced the idea that socio-religious polities were based on changing beliefs and faith with the authority instead granted to objective experts, like Courts, to identify fixed beliefs determined at the time of the origins of such polity. For example, the Aga Khan case (High Court of Bombay, 1866), treated the Khoja community as Muslim and the Pushtimargis as Hindu instead of them being considered as independent polities within these larger faiths. The consequence of this was clear – polities that previously determined their own idea of the religious traditions in which they engaged were now subjected to the Western conception of Hindu and Islamic law. (Shodan, 2001)

Therefore, the idea that religious/personal law exists as it was written in the Smriti or the Quran ignores the intricate systems of ‘contractual governance’ within religious sects that enabled them to re-interpret text in light of changing societal norms. By taking away the ability of these local collective structures to make decisions for themselves, these structures were compelled to surrender all decision-making, concerning personal law, among other things, to the Imperial government which made decisions in light of international or a collective mode of logic – vastly different from the ones followed at the local level. The movement to bring the local community into the public sphere was thus not an organic one, and was done for the sole purpose of making them more amenable to coexistence with societal and religious norms defined by the British. Thus, J. Gajendragadkar’s notion of a clean and inextricable link between religious texts and personal law is deeply ahistorical and largely a colonial construct, as it denies entirely the crucial role played by customary law at the local level in developing this law, and subsequently shaping its application.

We can now turn to C.J. Chagla’s conception of the scope of law under Article 13, and where personal laws may be placed in this spectrum.

‘Expressio Unius Exclusio Alterius’ under the Constitution

It was argued before the bench that personal law can even be considered as ‘custom or usage having the force of law’ under the definition of law under Article 13(3)(a). J. Chagla dismisses this contention:

‘.Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous.’

Evidence of this difference, J. Chagla argues, can be found in the inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) and Article 372 (Power to Adapt and Modify laws); the implication being that the drafters did not intend to subject personal laws to Constitutional provisions, because otherwise it would be ‘unnecessary to specifically provide for them.’

This reasoning is flawed for a number of reasons. His distinction between custom and personal law is, in my opinion, based on a misguided reading of the Constitution. This can be proven through an examination of the very basis of the argument, the principle of expressio unius exclusio alterius, i.e. the expression of one excludes the other, and its present application.

This principle is used sparingly as a tool of interpretation, being described as a ‘dangerous master’ because the conditions in which it can be conclusively applied remain unclear. Guidance is provided by the Calcutta High Court in Union of India v. BC Nawn, which held that primary purpose of this principle is when a provision in a statute expressly mentions one or more particulars, but does not mention some others, then those others not mentioned are taken to have been excluded from the provision. J. Chagla stretches the application of this principle far beyond this contemplation to encompass all provisions of the Constitution – holding in effect that any Constitutional declaration specifically relating to personal law is further evidence of its exclusion as a ‘law’ under 13(3)(a). This reading cannot be reconciled with the actual wording of Article 13, because it does not define ‘law’ or ‘laws in force’ in an exhaustive manner, with the broad import of the word ‘including’ in the definition of both terms exemplifying the intent of the drafters not to subject them to restrictive tools like the exclusio principle. It should not be said, as a result, that Articles relating to personal law under the Constitution occupy a field independent of Article 13.

This underlying logic of this principle is made weaker in light of its problematic implications. Take for example Article 23, which establishes a right against discrimination on grounds of religion, caste or class. As per J. Chagla’s reasoning, the inclusion of a specific right against caste-discrimination would signify its exclusion from the scope of Article 14, which establishes a right to equality. However, this is apparently untrue, with the Supreme Court holding in a catena of decisions that certain provisions in the Constitution must be read together, due to the broad wording of certain provisions under Part III, and the ‘abundant caution’ of the drafters lead to the inclusion of certain provisions. A relevant example is that of the inclusion of Article 13 itself. C.J. Kania in his decision in A.K Gopalan v. State of Madras wrote that even in the absence of Article 13(1) and (2), Courts would still have the authority to strike down unconstitutional enactments; but the drafters still included Article 13. This inclusion, he argues, demonstrates the exercise of ‘abundant caution’ by the Constitutional drafters to ensure that all prospective laws and laws already in force were immediately invalidated, irrespective of subsequent litigation. Similarly, the inclusion of Article 17, which criminalises untouchability, can be said to have been included on similar grounds, to enable the State to impose adequate sanction upon those engaging in the practice, without having to wait for its declaration as being ultra vires.

Conclusion

Therefore, one would hope that the Supreme Court recognises this, and overrules Narasu, in light of both its incorrect reading of Article 13, as well as the ahistorical understanding of the distinction between personal law and ‘laws in force’ as recognised under the Constitution. Only if the Court undertakes such an exercise can we move beyond the current trend of judicial ‘cherry-picking’ in relation to what religious doctrines are and are not in fact personal law, and principally examine the legal validity of these principles in light of Part III. Here’s to hoping.

 

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Filed under Article 14, Article 15 (general), Equality, Non-discrimination, Personal Law

The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer

Tomorrow, a Constitution Bench of the Supreme Court will commence hearings in the constitutional challenge to Section 6A of the Citizenship Act. The case comes up for hearing as the result of a referral order under Article 145(3) of the Constitution, passed by a bench of two judges in Assam Sanmilita Mahasangha vs Union of Indiawho framed thirteen questions of law to be decided by a Constitution Bench.

Tomorrow’s hearing may be a brief one. The Bench has indicated that it is unlikely to hear the matter unless all counsel commit to finishing within seven working days. Given the scale and complexity of some of the questions (as we shall see), as well as the number of intervention applications that were allowed after the referral, this is unlikely. In light of the fact, however, that even if it is not heard at the present, it is likely to be taken up soon after the vacations (in July or August), I shall provide a brief primer to the case.

History

Migration has been a source of social and political conflict in the border-state of Assam at least the middle of the 19th century. During the framing of the citizenship provisions of the Constitution during the Constituent Assembly Debates, the representative from Assam highlighted issues pertaining to large-scale migration from Bengal, its impact upon the indigenous population and culture, and asked for specific constitutional provisions to deal with the issue. Ultimately, however, the Constitution contained only skeletal provisions on citizenship – in particular, to deal with the Partition – and left the issue to be addressed by Parliament. Article 5 of the Constitution incorporated the broad jus soli principle of citizenship, stipulating that all those who had their domicile in India at the time of the commencement of the Constitution, would be citizens if they were born here, if either of their parents were born here, or who had been ordinarily resident for not less than five years. Articles 6 and 7 were the Partition provisions, dealing with migrations to and from Pakistan, and fixing 19th July 1948 as the “cut-off date” for citizenship. And to clarify that these provisions were only dealing with the special situation created by the Partition, Article 11 contained an overriding clause authorising Parliament to legislate for citizenship. Parliament did so in 1955, with the Citizenship Act, and a special law for Assam titled the Immigrants (Expulsion from Assam) Act of 1950.

To regulate the entry of migrants into India, the colonial government had passed the Foreigners Act of 1946, which continued even after Independence. This Act conferred powers upon the government to prohibit entry of foreigners, among other things. In 1964, acting under the authority of the Act, the Government promulgated the Foreigners Tribunal Order. This Order authorised the Government to establish Tribunals to determine questions of nationality, in accordance with the provisions of the Foreigners Act. Consequently, the Constitution of India, the Citizenship Act of 1955, the Foreigners Act of 1946, and the Foreigners Tribunal Order of 1964 comprised a comprehensive statutory regime dealing with both substantive and procedural questions of citizenship and migration.

Meanwhile, issues of migration continued to cause conflict in Assam. Matters came to a head during the run-up to the Bangladesh War of 1971, where in fact a massive influx of refugees into India from (what was then) East Pakistan was cited as one of the reasons for India’s involvement in the war. The issues did not cease even after 1971, however, because it was perceived that many of “illegal immigrants” were being put on voting rolls by political parties attempting to create faithful constituencies. Ultimately, this led to a state-wide student movement called the Assam Agitation, which lasted six years, from 1979 to 1985. The movement was sometimes punctuated by violence, including the Nellie massacre of 1983. It was finally brought to a close in 1985, with the signing of the Assam Accord between the Government of India, and the leaders of the movement.

The Assam Accord, S. 6A of the Citizenship Act, and the IMDT Act 

The Assam Accord was effectively a political compromise between the government and the leaders of the Assam Agitation. While providing for two separate cut-off dates for regularisation of migrants (an issue we shall discuss in a moment), the Accord also contained provisions for the development of Assam, as well as obligating the Government to see that “the international border shall be made secure against future infiltration by erection of physical barriers like walls, barbed wire fencing and other obstacles at appropriate places.”

Section 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord. Section 6A divided “illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state after 1971. The first group (pre-’66) was to be regularised. The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years. The third group (’71-onwards) was to be detected and expelled in accordance with law.

Section 6A, therefore, was a special citizenship law for Assam, hammered out as a result of a political settlement. Meanwhile, two years before the Accord and S. 6A, the Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983. This Act authorised the Government to set up Tribunals for the purposes of determining whether migrants were illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. The Act and the Rules, taken together, made some departures from the procedure under the Foreigners Act and the Foreigners Tribunal Order: for example, the procedure for making a reference to the Tribunal was made more onerous, the burden of proof was shifted from the State to the individual, and so on.

Consequently, the statutory regime governing migration to Assam now became Section 6A of the Citizenship Act, read with the Illegal Migrants Act of 1983, and the Illegal Migrant Rules of 1984. While the Government defended this regime on the basis of protecting minorities, who were genuine citizens of India, from persecution they were also attacked as being too lax on illegal migration, and making it almost impossible to deport illegal migrants.

The Judgment in Sarbananda Sonowal vs Union of India

The Illegal Migrants Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal vs Union of India. A three-judge bench of the Supreme Court held that the statutory regime, with its reversal of the burden of proof clause (placing the burden of proof upon the State rather than the alleged illegal migrant), and its procedural requirements of filing applications (“… accompanied by affidavits sworn by not less than two persons residing within the jurisdiction of the same police station in which the person referred to in the application is found, or residing, corroborating the averments made in the application.“), was insufficient to check the problem of illegal migration. Relying upon a 1998 report by the Governor of Assam, the Supreme Court held that there was a flood of Bangladeshi migrants into Assam, which the statutory regime had failed to check. This, the Court held, amounted to “external aggression” against the State of Assam, and under Article 355 of the Constitution, it was the duty of the Union to protect every state against external aggression. Holding the statutory regime of the Illegal Migrants Act and Illegal Migrants Rules to be directly responsible for this failure, the Court held the Act and Rules to be unconstitutional.

After Sarbananda Sonowal, therefore, the Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the Foreigners Act and the Foreigners Tribunal Order. The State’s attempt to get around this through passing the Foreigners Tribunal (for Assam) Order of 2006 was also struck down by the Court in Sarbananda Sonowal (II)

The Referral Order

It is in this context that the challenge to Section 6A of the Citizenship Act came before the Supreme Court. In his referral order, Justice Nariman framed thirteen questions of law:

“(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam;

(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and

(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.

(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?

(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution? 

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?

(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?”

As we can see, these referral questions raise a host of complex issues about the interaction between the State’s sovereign power of conferring citizenship, the right to equal treatment, and the right to preservation of culture and identity; the interaction between rule of law and citizenship provisions arising as a result of political settlements; and the impact of a possible judgment of unconstitutionality upon vested rights that have stood for decades.

The Aftermath

After the referral order, some further petitions were filed, that were tagged with the main case. These included a petition asking that Section 3 of the Citizenship Act be read in a manner that children of illegal immigrants, when it came to Assam, ought not to be granted citizenship, on the basis that Section 6A was a comprehensive provision dealing with the issue of migration and citizenship in Assam. Petitions were also filed challenging the Foreigners (Amendment) Order of 2015 and the Passport (Entry into India) Amendment Rules, 2015, which stated that “persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014” would be granted exemption from application of the Foreigners Act and the Passport Rules. It is unclear whether the Court will take up these additional issues for hearing as well.

Either way, we shall know more about the progress of this case tomorrow.

(Disclosure: The writer is assisting the Respondents (AASU) in defending the constitutionality of S. 6A)

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Filed under Citizenship, Cultural Rights, Equality, External Aggression (Article 355), Migration, Minority Rights

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

Taxing Sanitary Pads and Article 15(1) of the Constitution: Some Clarifications and Responses

In the last post, I argued that taxing sanitary pads non-trivially disadvantages women, on the ground of their sex, and consequently, violates Article 15(1) of the Constitution. There have been a substantial number of responses to the argument, both in the comments section of the blog, and elsewhere, which have pushed me to clarify and refine some of my thinking that went into the original post. In this post, I shall attempt to respond to some of the points that have been made.

“Sex” is Not a Biological Fact

I should start by clarifying that my original post assumed “sex” to be both binary, and a given, biological fact. We now know that this framing of “sex” is just that: an assumption, or a social construction. Without getting into complex terminological debates about the difference between “sex” and “gender”, it was correctly pointed out in the comments that in NALSA vs Union of India, the Supreme Court has (at least implicitly) accepted that “sex” under Article 15(1) of the Constitution is as much a matter of personal identification, as it is a matter of biology. It was also pointed out that the argument bypasses the rights of transgender individuals.

I accept the thrust of these criticisms, insofar as there exist individuals who do not identify as women, but who also menstruate, and require sanitary pads. For the purposes of this post, however, while acknowledging this reality, I want to continue using “sex” in terms of a distinction between men and women – only for the reason that the argument depends on working within existing law and jurisprudence, both of which are committed to the binary, objective understanding of “sex”. Once we succeed in establishing the case for sex discrimination on the old, classic model, we can then explore how we might extend it to our present, more nuanced understandings of “sex” and “gender”.

The Gendered Implications of Taxation Regimes

At the heart of a lot of comments disagreeing with my argument, I think, lies a sense of unease with running together tax law and discrimination law. We are accustomed to thinking of taxation as a sovereign function, which conceptually depends upon the State having to make discretionary choices about how best to raise revenue, through a system of financial incentives and disincentives. Taxes, ultimately, are guided by economic considerations and an assessment of goods and services, not of people. Consequently, while it is possible that tax might be used as a weapon of discrimination (jizya is a classic example) – and indeed, both the American and the Indian Supreme Courts have noted the possibility of punitive taxation being used to stifle the free press – this is limited to exceptional cases where the State is clearly acting with hostile purpose.

I would suggest, however, that according taxation law a high threshold immunity from the norms of discrimination would be a mistake. On the contrary, taxation gives the State such a powerful weapon to mould behaviour, that we should be specially solicitous of testing a taxation regime against constitutional norms. Goods and services are intrinsically linked to peoples’ conduct, choices, and ways of living. In my last post, I took the example of a tax levied only on crucifixes: while this might be dismissed as a very obvious, and unlikely example, there are other, indirect ways, in which tax regimes can be discriminatory.

An excellent judicial example of this is the judgment of the Canadian Supreme Court in Symes vs Canada. In Symes vs Canada, it was argued that disallowing childcare expenses as “business deductions” under the Income Tax regime was discriminatory on grounds of sex. The Appellant argued that, in view of the fact that women bore a disproportionate burden of childcare within the family, and consequently, were far more likely to need to hire child-carers in order to pursue their business interests, refusing business deductions amounted to sex discrimination. More broadly, the Appellant’s argument attacked the central assumptions of the Income Tax regime, which had been enacted at a time when gender roles were more rigid, and it was presumed that businesspeople would be male. For instance, under existing precedent, expenditures on taking clients out to golf, or to dinner, were deductible as business expenses, on the ground that these expenditures bore a proximate relationship with promoting the assessee’s business. Under that logic, however, paying a child-carer to free up time to pursue business was equally proximate. The only reason why it was not allowed as a business deduction was that the Income Tax regime was founded upon the assumption of a clear separation between the home and the business world, and was unable to envisage a reality in which women would be primed to pursue business while continuing to be burdened with responsibilities of childcare.

We can therefore see how a seemingly innocuous element of tax policy – disallowing childcare expenses as business deductions – was based upon a set of assumptions that were presumptively sex discriminatory. Ultimately, by a 7 – 2 majority (interestingly, the only two women on the bench were also the two dissenters), the Supreme Court rejected the case of the appellant; but it did so on the technical ground that the appellant had not shown that women bore a disproportionate share of the expenses on childcare (as distinct from responsibilities of childcare). What remains important, however, is that both the Majority and the Dissent(s) agreed that the taxation regime could – and often did – impact gender equality in both direct and indirect ways.

Condoms, Aftershave Lotion, Lipstick, Underwear, and Disadvantage

Many of the objections to my arguments took the form of counter-examples: if I was resting my case against taxing sanitary pads on the proposition that only women used them, then by the same logic, (men’s) condoms, (men’s) aftershave lotion, (women’s) lipstick, and (women’s) underwear should also be exempt from taxation under Article 15(1).

I should start by clarifying that there are two responses to this that I am not relying upon. First, I am not relying upon Article 15(3) of the Constitution. As I have argued before on this blog, I do not believe that Article 15(3) provides a carte blanche to the State to pass any law benefiting women at the expense of men. Article 15(3)’s location within the broader anti-discrimination clause clearly indicates that it is limited to saving those laws that benefit women with a view to remedying historical and structural discrimination. Consequently, if the principles of my argument applied equally to sanitary pads and to aftershave lotion, then 15(3) could not be a ground to legitimately deny men the benefits of tax-free aftershave.

Secondly, I am not resting my argument purely on a distinction between essential items and luxury goods. That distinction is important, but – as I shall go on to show – it is better understood as an argument not about essentials/luxuries, but about disadvantage.

In the last post, I had argued that the key to my argument under Article 15(1) is a shift from understanding discrimination law as being about a strict comparison between two classes, to understanding it as being about remedying historical and structural disadvantages. These disadvantages – which could take the form of deprivation of goods and services, or humiliation and insult – were located around the sites – or grounds – set out by Article 15(1): sex, race, religion etc.

I should clarify what I mean by this: I do not mean that we should stop thinking of discrimination as a question of equality. However, the kind of equality that is at stake when we think of discrimination law is – in the words of the South African Constitution“the full and equal enjoyment of all rights and freedoms.” The shift is a subtle, but important one: our enquiry is now not whether “X” action applies to “A”, but not to “B” (the strict comparator approach, under which sanitary pads do not raise a discrimination issue because – as a commentator pointed out – men do not menstruate); but rather, does “X” action affect “A’s” “full and equal enjoyment of all rights and freedoms” in a manner that it doesn’t affect “B’s”.

Now if we understand a sanitary pad tax as – effectively – a tax on menstruation, then the applicability of the second framing of discrimination (as disadvantage) should become easier to analyse. It is important to start by noting the well-documented social, cultural, and economic role played by perceptions of menstruation in upholding (unequal) gender roles in society: many societies have viewed menstruation as a symbol of impurity and inferiority; but perhaps more importantly for our purpose, the physiological effects of menstruation have serious economic ramifications upon women’s participation in the workplace on equal terms with men (consider the recent debates on paid menstrual leave, for instance), as well as upon their reproductive health.

I have only set out the form of the argument here: a complete argument would require a detailed scientific and sociological study of the societal affects of menstruation, and the role of sanitary pads in that context. It would also require dealing with an objection raised in the comments, namely, that in view of the fact that only 12% of Indian women use sanitary pads (and the other 88% have to make do with alternatives), in the Indian context perhaps sanitary pads are luxuries: to answer this objection, we would need to consider both women’s testimony, and scientific evidence, on how sanitary pads mitigate the debilitating effects of menstruation

Presumptively, however, I hope that this makes clear the distinction between sanitary pads on the one hand, and condoms, lipsticks, aftershave lotion, and underwear on the other (this is apart from the fact that neither condoms nor underwear is sex-specific): a tax on sanitary pads is effectively a tax on menstruation. It is discriminatory because it entrenches and perpetuates – both materially and symbolically – disadvantages (of different kinds) suffered by women in society because they menstruate. Now if a similar argument can be made for other items, then there is a ground for exempting them from tax as well.

Why Not Article 21? 

Many commentators were of the view that Article 21 – through arguments about the right to dignity and the right of access to health – might provide a better constitutional foundation for an argument against taxing sanitary pads. I would, however, prefer to maintain a focus on Article 15(1), for three reasons: first – for the reasons advanced above – I do actually believe that a tax on sanitary pads is predicated upon long-held assumptions that are basically gendered and discriminatory; secondly, an Article 15(1) argument helps us to move beyond the strict comparator bind that we’ve been in for the last six decades, and to think of fresh ways of conceptualising discrimination; and thirdly, I’m hesitant about an expansive reading of Article 21. As I have argued before on this blog, we should be wary of continuing to use Article 21 in a manner that both dilutes the core right (life and personal liberty), as well as risks taking us to a place where Article 21 begins to swallow up other rights under the new judicial fad of “balancing rights”. This does not, of course, take away from the fact that the sanitary pad tax does raise a core issue of access to health (as much as it raises an issue of discrimination), and under existing jurisprudence, Article 21 does include a right of access to health.

Specific and Holistic

One commentator raised an important point: would the tax on sanitary pads remain discriminatory if it was shown that overall, the tax regime as a whole was more favourable to women than men? In other words, what if it could be shown that the burden on sanitary pads was offset by other benefits in the IT Act, so that at the end of the day, women had a smaller overall tax burden?

In my view, I think this argument would have force if we continued to think about discrimination as centred around a strict comparative approach. On the shift to the disadvantage approach, however, it doesn’t matter if overall women are placed better off than men: the tax on sanitary pads – which is effectively a tax on menstruation – causes disadvantage that is of concern to discrimination law, even if that disadvantage is offset by advantage elsewhere. However, I am not entirely convinced of this response.

Conclusion

In conclusion, therefore, I think that despite some nuanced and important objections, the basic form of the argument – that a tax on sanitary pads presumptively constitutes sex discrimination under the Constitution – continues to hold. Whether it actually constitutes sex-discrimination depends upon producing the kind of evidence that I have outlined above, including – and especially – the personal testimonies of women.

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Filed under Article 15 (general), Article 21 and the Right to Life, Equality, Non-discrimination, Right to Health, Sex Discrimination