The Supreme Court today said it was “alive” to its earlier orders which had held that Aadhaar should be “voluntary”. “We are alive to the orders passed by this court which says it should be voluntary,” a bench comprising Justices A K Sikri and Ashok Bhushan said. The apex court made these observations while hearing the petitions challenging the constitutional validity of section 139AA of the Income Tax (IT) Act, which was introduced through the latest budget and the Finance Act 2017.
Section 139AA of IT Act provides for mandatory quoting of Aadhaar or enrolment ID of Aadhaar application form for filing of income tax returns and making application for allotment of PAN number with effect from July 1 this year. Senior counsel Shyam Divan, representing the petitioners, argued that section 139AA was unconstitutional and it was in “direct collision” with the Aadhaar Act.
“The entire Aadhaar Act is voluntary. It creates a right in favour of citizens. It does not create a duty. The Act is entirely voluntary. How can they make it mandatory under the Income Tax Act? The scheme under the Aadhaar Act is in direct collision with the provision of section 139AA,” he said.
He also argued that there was no question of forcing a person to give his consent for Aadhaar and this was an issue which “alters the relationship of Republic of India with its citizens”.
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However, the bench observed, “we have to interpret a statute as per the objective with which it has been framed.” Referring to the earlier orders passed by the apex court, Divan said a five-judge bench had in October 2015 said that Aadhaar card scheme was voluntary and not mandatory till the matter was finally decided by the apex court.
He said in that order, the court had also said that a larger bench was required to be set up for final disposal of the petitions but it has not been constituted till now. The senior counsel also argued that a bench headed by then Chief Justice of India (CJI) H L Dattu had passed that order and after him, the apex court has seen two CJIs — former CJI T S Thakur and incumbent CJI J S Khehar — but a larger bench has not been set up to adjudicate the matter.
Questioning the government’s move, Divan said it was like a “bargain” that government was asking for finger prints and other details of an individual, which were required for making Aadhaar, for extending benefits of welfare schemes.
However, the bench said, “As far as privacy issue was concerned, it has been referred to a larger bench so we cannot decide it here. … Your privacy issue that you do not want to give your finger prints will be heard by a larger bench.”
The petitioner also argued that a law abiding tax payer cannot be forced to give his Aadhaar while filing income tax return and this was like an “electronic leash” as government would keep a tab on its citizens. “Nowhere in the world there is such biometric system which can track a person 24X7. They (government) are doing it even before the age of consent,” he said during the arguments which would continue tomorrow.
“We (citizens) are not servants of the state. We are independent citizens. They cannot invade my body and if they will invade it, then it would be a totalitarian state,” he said.
The apex court had yesterday put a poser as to why there was no objection from lawmakers on the government’s decision to make Aadhaar mandatory for making PAN cards.
Defending the Centre’s stand to make Aadhaar mandatory for filing of Income tax returns and to apply for PAN, Attorney General Mukul Rohatgi had referred to around 10 lakh fake permanent account number (PAN) cards in the country and said that Aadhaar was the only system which could prevent duplication or fake cards.
Rohatgi had also clarified that nowhere in section 139AA of IT Act, was it mentioned that it would be effective with retrospective effect. The government had earlier told the apex court that fake PAN cards were being used to “divert funds” to shell firms.