Press Release: Linking of Aadhaar to PAN stands on weak legal grounds

Two writ petitions challenging the latest amendment to the Income Tax Act were heard on Wednesday at the Supreme Court by a bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan. The amendment in question introduces Section 139AA that makes submission of one's Aadhaar/UID number, an identity number linked to biometrics, mandatory when filing of income tax returns and obtaining and retaining the Permanent Account Number (PAN), both of which will be implemented from July 01, 2017 onwards.
Thus, the amendment makes it a penal offence to not enrol for Aadhaar/Unique Identity Number if one is an income tax payer in India.

The first petition was filed by CPI Leader Binoy Viswam, who is represented by Senior Advocate Aravind Datar, and the second one was filed by Sudhir Vombatkere and Bezwada Wilson, who are represented by Senior Advocate Shyam Divan. Attorney General Mukul Rohatgi, Harish Salve, and others are representing for Union of India and UIDAI.

On Wednesday, the bench began by stating that the Constitutional challenge to Aadhaar was yet to be heard. The counsels for the petitioners immediately said that arguments would be made without covering the Right to Privacy. The bench said that they had been thinking of tagging the matter.

For over a year the Supreme Court has refused to constitute a bench to hear the Aadhaar matter and the government has continued on in flagrant violation of the orders of the Court. The Aadhaar project has been riddled with controversies in the last few months.

Massive data leaks and fraud have been recorded and brought into the public domain. In these conditions citizens have little recourse. Arguments nevertheless commenced.

Senior Advocate Arvind Datar began by discussing how the mandatory linking of PAN to Aadhaar violated article 14 and article 19(1)(g). He further argued that even the Aadhaar Act did not allow for Aadhaar being made mandatory. In this context how could the govt amend another law to make it mandatory?

He pointed out that the proviso to s.139AA said that all PAN cards would be deemed to be invalid as if the person had never applied for PAN. The govt. clarified that it would not be retrospectively applicable. Mr. Datar stated that the amendment violates article 14 and is arbitrary in nature. He cited judgments in support of the proposition that laws can be struck down on the grounds of arbitrariness.

Senior Advocate Shyam Divan began by explaining the context of the petitions. He said that even though privacy was not in question the bench should be aware of what was at stake. He said "what is it that we are fighting for? My fingerprints and iris are mine and under my control. Not even the great Republic of India can force me to part from my body. There is no bargain the the Constitution of India that allows the government to say give me your fingerprints."

Mr. Divan explained that even if privacy was not in question - surveillance, profiling and seeding (putting Aadhaar in multiple databases) was.

He explained the enrolment process which is carried out by private agents who collect and store biometric data. 34,000 enrolment agencies have been blacklisted.

He also showed the court the Aadhaar enrolment form prior to 2016 under which lakhs had enrolled where people had to give their consent to the UIDAI which could arbitrarily share their data with third parties.

The matter will be heard again tomorrow.

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