‘Verdict did not examine vital issues’

A review petition has been filed in the Supreme Court for a re-examination of the Constitution Bench decision upholding the Aadhaar scheme.

The petition filed by Imtiyaz Ali Palsaniya, represented by advocates Nipun Saxena and Pallavi Pratap, said the September 29 judgment did not examine certain vital issues connected to the scheme and its parent statute — the Aadhaar (Targeted Delivery of Benefits, Subsidies and Services) Act, 2016.

Info on income

The petition points to Section 2(k), which specifically prohibits any person from parting with any information which is pertaining to one’s “income”. It said the provision categorically states that the demographic information shall not include information pertaining to one’s income statement.

“Despite a clear legislative mandate to the contrary, Section 139AA of the Income Tax Act, 1961 made it compulsory to ensure that PAN card is linked with one’s Aadhaar details. The proviso to Section 139AA(2) further states that in case a person fails to intimate Aadhaar number, the PAN of the person shall be deemed to be invalid, and this failure to link will result in a situation wherein the person will be treated as if he had never applied for a PAN card,” the petition said.

The “specific legislative embargo” in Section 2(k) of the Aadhaar Act, 2016 was not considered by the court. The petition said Section 139AA of the Income Tax Act, 1961 ought to have been struck down.

Secondly, Aadhaar linkage was supposed to be confined to either a benefit, subsidy or service.

“Filing of Income Tax returns under Section 139AA of the Income Tax Act, 1961 does not fall within either of the three descriptions. Filing of Income Tax is a statutory mandate, the violation of which could result in serious penalty. It is neither a benefit, subsidy or service,” the petition contended.

It argued that ‘income’ is neither a biometric information nor a demographic one. The petition highlighted how the Aadhaar programme had already become an “instrument of transfer of sensitive personal data belonging to the citizens of this country into foreign entities, which acted as Biometric Service Providers, even before the Act came into existence. Sensitive personal information was already retained, collected, stored as well as processed by these BSPs much before the Aadhaar Act, 2016 came into existence. “This has resulted into a massive national security risk,” the petition said.

How can such information remain in private hands despite the Right to Privacy judgment and when Section 29 of the Aadhaar Act prohibits the collection or creation of core biometric information.

It alleged that Aadhaar had been the “singular tool” which diluted the distinction “between citizens and residents who are not citizens.” “Needless to say, all the benefits, subsidies or services that are solely the rights of the citizen, are being given away to residents who are not citizens,” the petition said.