Adverse Inference v. Civil Death

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Can citizens claim an absolute right over their body parts and refuse to give digital samples of their fingerprints and iris for Aadhar enrollment?

Mr Shyam Divan, Senior Advocate, argued recently, before the Supreme Court, 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 has now been accepted in both Canadian and South African constitutional law – stipulates that an individual has the right to limit what she put out to the world about herself.

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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. Divan 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.

It has been held recently in State of Uttar Pradesh v. Sunil, [Criminal Appeal Nos.1432-1434 of 2011], that “albeit any person can be directed to give his footprints for corroboration of evidence but the same cannot be considered as violation of the protection guaranteed under Article 20(3) of the Constitution. It may, however, be noted that non-compliance of such direction of the Court may lead to adverse inference, nevertheless, the same cannot be entertained as the sole basis of conviction.”

‘Adverse inference’ is the only result thus against an accused person who refuses to provide his fingerprints or footprints. The result for a law-abiding citizen should be even lesser.

No.

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. A cancelled PAN effectively amounts to a “civil death”. 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 requires tax-paying individuals to get an Aadhaar Card, on the pain of visiting severe disabilities upon them in case of non-compliance.

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