Supreme Court: Can't question House on Aadhaar

New Delhi: The Supreme Court observed on Wednesday that “whether linking Aadhaar with PAN is good or not, we can’t question the wisdom of Parliament that has enacted a law. We can’t substitute our wisdom for Parliament”.

A Bench of Justices A.K. Sikri and Ashok Bhushan made these observations during the hearing of petitions challenging the linking of Aadhaar with PAN card and making it mandatory for filing Income Tax returns.

Senior counsel Arvind P. Datar with advocate Sriram Parikkat, appearing for petitioner former Kerala minister, Binoy Viswam, submitted the Constitution Bench of the apex court has given rights not to make Aadhaar compulsory and that it can’t be indirectly taken away by the government. He also pointed out  the government had given assurances to this court not to make Aadhaar mandatory and now how can it go back on its assurance. Refuting the government’s claims on curbing black money by linking Aadhaar with PAN card, the counsel wondered as to how this will help.

Mr Datar said, “Whatever the scheme, people still evade taxes. It is a non-tax compliance society.” Justice Sikri observed, “We citizens are like that. It’s a shame on us.  We don’t pay taxes. Just because the government has given an assurance, can we stop Parliament from enacting a legislation?”

Mr Datar with senior counsel Shyam Divan said making Aadhaar mandatory is a violation of the right to equality, and that the information of an individual is sought to be forcefully obtained by the state machineries by negating the requirement of consent, by making the consequences of non-enrolment drastic. They also argued that the government cannot indirectly make Aadhaar mandatory through Income Tax Act.

Attorney general Mukul Rohatgi, however, defended the law, saying that those assurances were given by the government before it passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act. He said there is no technology in the world that can prevent duplication other than biometric details. “Biometric is the only system that can stop duplication,” he said, adding that over 99 per cent of the population have Aadhaar card.

The petitioner said till now, he did not hold an Aadhaar card on the legitimate expectation that the said scheme was not mandatory in view of the orders of this court that Aadhaar card is not mandatory as well as the provisions of the Aadhaar Act. However, due to the introduction of Section 139AA of the Income Tax Act, 1961, the petitioner is being coerced into obtaining an Aadhaar card in complete violation of his right to privacy as enshrined under Article 21 of the Constitution.

He said this Court has in various petitions dealing with the constitutional validity of the Aadhaar scheme has directed that the said scheme is purely voluntary and is to be obtained only on the consent of the individual. He said by virtue of the aforesaid provision, he and other citizens, who had refrained from enrolling in the Aadhaar scheme due to prevailing apprehensions regarding the infringement of the right to privacy are being forced to give consent for the enrolment to the scheme.

The same is evident insofar as the non-enrolment by  July 1, 2017 , shall render the PAN of the defaulting individual invalid, and thereby, attracting the consequences under the Income Tax Rules.

He said that when an existing regime of PAN is in place, the said provision has been enacted merely to render nugatory the larger bench reference pending before this  Court. Bringing such a provision as an amendment to the Finance Bill, falls foul of Article 14 of the Constitution, he said and prayed for quashing the provision and an interim stay of its operation. Arguments will continue on Thursday.