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Shyam Divan concludes arguments in Aadhaar case in Supreme Court

LiveMint logoLiveMint 28-04-2017 Apurva Vishwanath

New Delhi: Senior advocate Shyam Divan, appearing for one of the petitioners challenging the government’s decision to link Permanent Account Number (PAN) with Aadhaar, made several points on Friday as part of his closing argument to prove that the law is constitutionally unsustainable.

A Supreme Court bench comprising justices A.K. Sikri and Ashok Bhushan is hearing three pleas challenging the government’s decision to make Aadhaar mandatory for filing income tax returns (ITRs) as well as for obtaining and retaining PAN. The petitioners are: Binoy Vishwam, senior Communist Party of India leader; Bezwada Wilson, a Dalit rights activist; and S.G. Vombatkere, a retired Army officer.

The government’s top law officer attorney general Mukul Rohatgi is expected to defend the law on Tuesday.

Divan’s argument made the following broad points:

• Informational self-determination

An individual must be allowed to determine what information of his can be allowed to be put out and this is closely tied to a person’s right to dignity. The legal concept of informational self-determination was developed in a German constitutional court ruling relating to personal information collected during the 1983 census. Divan cited scholarly articles to develop this argument.

• Violative of freedom of speech and expression

Making linking of Aadhaar with PAN mandatory is like compelling a person to speak. Coercion to speak by sharing my personal details is violative of freedom of speech and expression. Data protection is essential to protect a citizen’s right to participate in a political environment. When a citizen knows he is being watched, he might not dissent. Divan quotes the apex court ruling in the Bijoy Emmanuel case in which the court held that forcing a citizen to sing the national anthem is violative of both freedom of speech and expression under Article 19(1)(a) and Article 25 concerning freedom of religion.

• No legislative competence

The state has no eminent domain in making a law that forces a citizen to part with biometrics.

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