SC stay on Aadhaar-PAN linkage: There is still hope for privacy, Section 139AA detractors

The Supreme Court delivered the much awaited Aadhaar-PAN judgment on Friday. The upholding of Section 139AA of the Income Tax Act, 1961, and the limited relief granted for those without Aadhaar, has led to the assumption that the judgment is entirely a victory for the government, with little hope for those against Aadhaar.

It is, on the other hand, both a victory and a setback, equally for the government and the anti-Aadhaar advocates. The judgment makes it clear that Section 139AA is yet to survive the more stringent test – of the right to life and liberty under Article 21. This point is reiterated as many as four times in the judgment.

The implications of this are clear, Section 139AA is legal and binding, but only for now. The decision of the Constitution Bench in the Aadhaar-privacy case will decide the final fate, of both Aadhaar as well as Section 139AA.

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Setback for anti-Aadhaar advocates

The setback to anti-Aadhaar advocates and the corresponding victory for the government is obvious. Making Aadhaar mandatory for filing ITRs (after 1 July), while applying for PAN and mandating Aadhaar-PAN linkage will only increase the pervasiveness of Aadhaar. The relief granted to persons without Aadhaar is also very limited, and only with respect to Aadhaar-PAN linkage.

The permitting of laws like Section 139AA which make Aadhaar mandatory, even though the Aadhaar Act itself makes it voluntary, is a major concern. Moreover, the Supreme Court supported the governments' creation and use of Aadhaar for purposes like weeding out black money, preventing PAN duplicates and discovering shell companies.

Understanding the Aadhaar-PAN judgment

Despite the setback, the judgment must be read and understood keeping some important points in mind. These lend a different perspective to the Aadhaar-PAN judgment, thus giving hope to privacy and anti-Aadhaar advocates:

Judicial discipline prevented consideration of privacy arguments

The Supreme Court made it clear, multiple times, that it will not be considering any arguments around the right to privacy or Article 21. The reason for this is judicial propriety, where a judicial bench will not adjudicate on matters that are already pending before a larger bench, in this case the Aadhaar-privacy case before the larger Constitution bench.

Arguments on violation of bodily integrity, surveillance, were not rejected

The apex court thus only considered arguments based on a violation of other fundamental rights, namely the right to equality (Article 14), and the right to freedom of profession (Article 19(1)(g)). Considering that the main concern with Aadhaar is the violation of privacy (Article 21), arguing against it without touching on privacy was definitely a difficult job.

In fact, several arguments made in this case on the violation of Article 14 and 19 also involved the right to privacy. Be it the arguments on the right to bodily integrity, the right to live with dignity, the arguments against the collection of biometric data, and even arguments against surveillance, all had shades of the right to privacy.

Thus, these very crucial arguments based on privacy could not be considered. It is important to take note that the Supreme Court in no way rejected these arguments. The Supreme Court, in fact, specified that these arguments should be brought up before the Constitution Bench.

Why relief granted was so limited

It must be kept in mind that, in addition to the reasons given in the judgment, the relief granted was so limited for the same reason. Many of the arguments made against the rest of the provisions of Section 139AA were related, in one way or the other, to the right to privacy, and so were not considered. The provision on invalidating PAN was the only part read down because it was the only part which could be found unconstitutional, completely independent of a violation of the right to privacy.

Courts' powers of judicial review are limited

Along with naming its limitations with hearing privacy based arguments, the Supreme Court also brought to notice another restriction it faced. Courts have limited powers of reviewing a law.

The first ground of review is that the parliament enacted a law on a subject that wasn’t on the Union List in the Constitution. In this case, enacting laws on income tax was clearly on the Union List, giving the Parliament the power to enact this law.

The second is that the Act violates the Constitution, such as a violation of the fundamental rights. Section 139AA passed the tests of the right to equality and the right to freedom of profession, though the test based on the right to life and liberty remains.

As the grounds for judicial review are limited, arguments on other grounds, like unreasonableness or arbitrariness of the act (unless this results in unconstitutionality) will not be considered.

Courts cannot question parliament’s motive

The Court, also, cannot question the Parliament's motives behind passing a law. For instance, it cannot be argued that the Aadhaar Act was enacted with a dishonest or underlying motive, such as to enable surveillance. It can, however, be argued that the all-pervasiveness of Aadhaar in effect enables surveillance, thus resulting in a violation of people’s right to life and liberty. This, it is to be remembered, is an argument which can only be brought up before the Constitution Bench in the Aadhaar-privacy case.

Don’t lose hope yet

Thus, while the prospects of preventing privacy violations by Aadhaar may appear bleak, people mustn't lose hope yet. This judgment certainly cannot be seen as a prediction of the outcome of the Aadhaar-privacy case, since no decision whatsoever was passed on the right to privacy arguments. Moreover, the Supreme Court in this judgment asked the government to take steps to protect Aadhaar related data. This is a positive indication of the Supreme Court's focus on privacy.

Despite the huge delay in setting up the Aadhaar-privacy Constitution Bench, as the Supreme Court itself states, Section 139AA and the Aadhaar Act are yet to stand a lot more stringent test – that of Article 21. While a lot banks on the effectiveness of the right to privacy arguments, the final word on Aadhaar is yet to come.