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Why the Government is wrong to claim it is legal to force citizens to link Aadhaar to PAN

The Supreme Court is set to hear an important challenge on Wednesday, April 26 on linking of Aadhaar, a 12-digit biometrics based identity number to the Permanent Account Number(PAN), used for filing income tax.

On Friday, April 21, two writ petitions challenging the latest amendment to the Income Tax Act were heard at the Supreme Court by a bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan. The amendment in question introduces Section 139AA that makes submission of one's Aadhaar/UID number mandatory when filing of income tax returns and obtaining and retaining the Permanent Account Number (PAN), both of which will be implemented from July 01, 2017 onwards.
Thus, the amendment makes it a penal offence to not enrol for Aadhaar/Unique Identity Number if one is an income tax payer in India.

The first petition was filed by CPI Leader Binoy Viswam, who is represented by Senior Advocate Aravind Datar, and the second one was filed by Sudhir Vombatkere and Bezwada Wilson, who are represented by Senior Advocate Shyam Divan. Attorney General Mukul Rohatgi, Harish Salve, and others are representing for Union of India and UIDAI. Mr. A.B.P. Pandey, Chief Eexcutive Officer of UIDAI, was also present in the Supreme Court when the matter was heard last Friday. .

During the arguments, Justice Sikri asked the Attorney General as to how the Union Government can force someone to enrol for Aadhaar/UID numbers when there are interim orders of the court in the case. (These SC orders say Aadhaar can only be used on a voluntary basis, that no one can be denied a service they are otherwise entitled to just because they do not have an Aadhaar number, and the matter is pending after it was referred to a Constitution bench.)

In response, the Attorney General advanced three arguments in support of the Income Act Tax amendment:

1. That the interim orders issued by the Supreme Court were made prior to the coming of the Aadhaar Act 2016 and because the basis of those orders were absence of legislation, those orders no longer hold the field.

2. That the Supreme Court has endorsed mandatory use of Aadhaar/UID for SIM card verification in the February 06, 2017 order given in the Lokniti Foundation Vs Union of India and Anr case.

3. That the Supreme Court's oral comments on March 27, 2017 has indicated that Aadhaar/UID may not be made mandatory for accessing welfare services but can be made mandatory for other purposes.

However, none of these arguments are valid.

1. The Aadhaar Act 2016 was published on March 26, 2016 [1]. The most recent order prohibiting making of Aadhaar/UID mandatory for access to any government programmes and services was issued by the Supreme Court on September 14, 2016 [2]. In this order, Justice V. Gopala Gowda and Justice Adarsh Kumar Goel directed that making submission of Aadhaar/UID number for applying for a government scheme is "contrary to the interim order passed by the Constitution Bench and therefore, to that extent they are not tenable in law" [Ibid.]. Thus, even after the Aadhaar Act was passed, the Supreme Court had reiterated its earlier orders on Aadhaar and these still stand.

2. The order given by Supreme Court on February 06, 2017 in the Lokniti Foundation Vs Union of India and Anr case quotes the Attorney General himself informing the Supreme Court that the government "has launched Aadhaar based E-KYC for issuing mobile connections on 16th August, 2016" and that "[currently] Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection" [3]. Nowhere in the order does the Supreme Court endorses the acceptability or desiability of making Aadhaar/UID mandatory for obtaining and using SIM cards in India.

3.The Supreme Court's oral comments on March 27, 2017 were a short discussion during a 'mentioning'. That day, there was a brief exchange between thebench and advocate Shyam Divan, as the bench was trying to understand the court’s earlier orders. This verbal exchange included some remarks by the Chief Justice of India on whether the October 15, 2015 order perhaps only applied to social welfare and benefit schemes and did not apply to other activities like I-T filings. Many media organisations including the Press Trust of India (PTI), wrongly reported these remarks as definitive observations amounting to judicial orders, which is incorrect.

The court nowhere said that the UID can be asked for other services. Anyone who knows court proceedings knows that the court could not have made any such order. One, because it was a `mentioning' that was underway, and that was only to fix a date, and such an order cannot be passed without hearing the parties to the case, and two, the October 15, 2015 order was by a 5-judge bench, and 3 judges cannot revise/rewrite/override that order.

Further, before tomorrow's hearing it is important to remember that the Supreme Court has previously noted in its orders that:

1. "The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card" [4].

2. "The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;" [Ibid.].

3. "The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;" [Ibid.].

/There is no evidence of any of these directives being implemented or adhered to by the Union of India./

The Rethink Aadhaar team awaits the judgement of the honourable judges on this case.

The next hearing is to take place on Wednesday, April 26, 2017, morning. Please send your reporters/correspondents to attend and report on this important hearing.

References

[1] Source: https://uidai.gov.in/images/targeted_delivery_of_financial_and_other_subsidies_benefits_and_services_13072016.pdf.

[2] Source: https://github.com/rethinkaadhaar/docs/blob/master/Court%20Orders/SC_2016.09.14_Order.pdf

[3] Source: https://github.com/rethinkaadhaar/docs/blob/master/Court%20Orders/SC_Lokniti_2017.02.06.pdf.

[4] Source: https://github.com/rethinkaadhaar/docs/blob/master/Court%20Orders/SC_2015.08.11_Proceedings%2BOrder.pdf.

For further information, write to [email protected].

Further reading:

https://rethinkaadhaar.in/blog/2017/3/31/legal-did-sc-allow-aadhaar-in-income-tax-pan-no