April 26, 2016 -On an otherwise uneventful day at the Supreme Court, Court room 7 garnered the limelight, thanks to the two petitions challenging the Constitutional validity of Section 139AA of the Income Tax Act (IT Act). The said Section makes Aadhaar mandatory for filing Income Tax Returns.

The two petitions filed by three petitioners were argued by two Senior Advocates before a Bench of Justices AK Sikri and Ashok Bhushan.

The first petition has been filed by CPI leader Binoy Viswam. The petition was drawn and filed by advocate Sriram P. Senior Advocate Arvind Datar appeared for Viswam.

The second petition has been filed by SG Vombatkere, a retired Indian Army Officer and Bezwada Wilson, founder and convenor of Safai Karmachari Andolan. The petition was drawn by advocate Udayaditya Banerjee and filed by M/s. KJ John & Co with Senior Advocate Shyam Divan appearing for the two petitioners.

Below are the excerpts from the hearing that happened today


As soon as the hearing began, Attorney General Mukul Rohatgi made a submission which, it seems was anticipated by the petitioners. He submitted that challenge to Aadhaar based on right to privacy as a facet of Article 21 is already pending before the Supreme Court. He further stated that an Article 32 petition cannot lie if the said ground of violation of right to privacy as fundamental right is not taken.

“Article 32 will lie only in case of violation of fundamental rights. If there is no challenge regarding right to privacy then why come to Supreme Court”?, he said.

However, Senior Advocate Shyam Divan responded to it by saying that they are challenging the vires of section 139AA on the ground of violation of Articles 14, 19 and 21 and they will not raise the right to privacy issue.

“We will not argue on privacy issue at all”.

The Hearing

Arvind Datar for Binoy Viswam

Datar appearing for Viswam, proceeded to make his submissions. He began his submissions by saying that the provision was not part of the original Finance Bill.

“There is nothing in the Finance Minister’s speech on why this provision was inserted.”

He contended that the Central government had given an undertaking to the Court that it will not make Aadhaar mandatory except for certain social welfare schemes.

“How can they then go ahead and make it mandatory under the Income Tax Act?”he asked.

One of Datar’s main contentions was that Aadhaar is not mandatory under the Aadhaar Act and hence it cannot be made mandatory under IT Act.

“Unless the parent Act, that is, Section 3 of Aadhaar Act is amended to make it mandatory, it cannot be made mandatory under IT Act.”

Besides that, he also relied on the orders of the Supreme Court in the main case challenging the validity of Aadhaar. As per the orders, the Court had directed that the scheme is voluntary and cannot be made mandatory till the issue is finally settled by the court.

“Undertaking by the Union of India says that except for some social welfare schemes, it will not be mandatory. Moreover, it is not a mere undertaking now because there is an order to that effect by a Constitution Bench of this Court”, he said.

Datar was particularly critical of the proviso to Section 139AA, which states that in case of failure to intimate the Aadhaar number, the permanent account number (PAN) allotted to the person shall be deemed to be invalid.

Datar argued that this would mean that PAN would be invalid retrospectively. This was, however, refuted by Attorney General Mukul Rohatgi who clarified that it would be invalid only prospectively.

Datar’s contentions regarding violation of Article 14 was, however, met with constant questions by the Bench. The Bench observed that if the Legislature takes a decision to replace PAN with Aadhaar, that would only be a matter of policy unless the issue of privacy is involved.

“Suppose PAN is replaced by Aadhaar, and there is no issue of privacy, then will your challenge stand?” Justice Sikri queried.

Datar said that the provision discriminated against individual assesses, since partnership firms etc. can continue to file IT returns without Aadhaar.

He also raised the issue of arbitrariness. Though arbitrariness is usually used as a ground to strike down administrative actions, Datar contended that it can be used to challenge primary legislations too. He relied on the case of Mardia Chemicals to buttress his argument.”

Datar concluded his arguments before the Court rose for lunch.

Shyam Divan for SG Vombatkere and Bezwada Wilson

Divan submissions today were largely on the background of Aadhaar and how it does not merit a place under the current Constitutional setup.

“The petitioners understanding is that the State in India, under this Constitution has no right over their bodies. In a totalitarian State, an individual is just a number, but that is not the case in India.”

Divan submitted that the State cannot coerce into taking fingerprints and iris scans. He also cited examples of how fingerprints and iris scans were misused in Germany by taking high resolution photographs during press conference with the same being used to hack into information on defence department.

“My finger print and iris scan are mine. The all-powerful Republic of India cannot coerce me into parting with it for paying taxes”, he submitted.

Divan cited the dangers of finger prints and iris scans being used by the State to act as an “Electronic leash”.

“There is no bargain permitted under our Constitution by which the State can say ‘Give me your fingerprint and I will tether you electronically’.”

Besides, Divan also drew the attention of the Court to the fact that the data was collected through private third parties and not government offices.

“These private parties have to be given my personal information, which could be misused. 34,000 of such enrollers were recently scrapped and 3.84 lakh Aadhaar numbers were cancelled. It shows that it is a very porous and inefficient system.”

Divan will continue his arguments tomorrow after which Attorney General Mukul Rohatgi will make his submissions on behalf of the Union of India.