Ex-Kerala Minister moves SC against Aadhaar linking

Binoy Viswam says IT law provision violates right to privacy

Former Kerala Minister Binoy Viswam on Thursday moved the Supreme Court challenging a provision in the Income Tax law that mandates the linking of Aadhaar with PAN as a violation of the fundamental right to privacy.

A Division Bench of the Supreme Court had on June 9, 2017 upheld Section 139AA of the Income Tax Act of 1961, which mandates the linking of PAN with Aadhaar number, to the extent that it was not discriminatory under Article 14 and not a violation of the fundamental right to trade and profession under Article 19(1)(g) of the Constitution.

Mr. Viswam was the petitioner in that case.

Right to privacy

However, the Division Bench led by Justice A.K. Sikri had left the question whether Section 139AA was violative of the right to privacy open. It decided to wait till a Constitution Bench delivered its verdict on whether privacy was part of the fundamental right to life enshrined in Article 21 of the Constitution.

Unanimous verdict

The issue was finally decided by a nine-judge Bench of the Supreme Court on August 24. It unanimously held that privacy was indeed a part of the fundamental right to life under Article 21. The nine-judge Bench’s verdict was based on a reference made to it by a five-judge Constitution Bench hearing a bunch of petitions challenging the Aadhaar scheme.

Buoyed by the privacy judgement, the Kerala leader has returned to the Supreme Court for a verdict on Section 139AA, which was introduced into the Income Tax statute by the government this year via the Finance Act.

Mr. Viswam, represented by advocates Sriram Parakkat and M.S. Vishnu Sankar, asked the apex court to suspend the operation of Section 139AA and restrain the government, “its agents and subordinate authorities from compelling the linking of existing Aadhaar-registered individuals with their PAN numbers.”

A gross violation

The plea points out that the nine-judge Bench had expressly recognised information privacy as being a facet of the fundamental right to privacy and stressed on the need for regulation in relation to data collection, protection and security.

“The petitioner [Mr. Viswam] prefers the instant writ petition raising a challenge to the said provision as being a gross violation of the right to privacy,” it said.