Government Can’t Disregard Supreme Court Order Making Aadhaar Voluntary, Argue Petitioners
The apex court concluded its hearing on a batch of petitions against Aadhaar-PAN linkage.
The government cannot disregard an earlier judicial order that said Aadhaar is voluntary, petitioners challenging the move to make the biometric ID mandatory for tax purposes argued in the Supreme Court.
The government can do it only by removing the basis on which the earlier judicial order was passed, Senior Advocate Arvind Datar said on behalf of one of the petitioners.
The Supreme Court reserved its judgement on a batch of petitions against making Aadhaar a must for filing tax returns and obtaining a Permanent Account Number (PAN).
The apex court had earlier passed an interim order that made Aadhaar voluntary, except for a few services like the public distribution system. Parliament then passed the Aadhaar Act, which again says that the biometric ID is voluntary. However, changes to the Finance Act have made it mandatory for filing tax returns and getting PAN.
A two-judge bench of Justices AK Sikri and Ashok Bhushan asked Datar whether the interim order of the Supreme Court which came in response to an executive order binds Parliament as well. Datar, citing legal precedents, said the Constitutional principles cannot be disregarded and the judicial order must be respected.
Citing speeches and replies in Parliament where ministers have said that the unique ID is voluntary, even after the Aadhaar Act was passed, he argued that although nobody disputes the sovereignty of Parliament, the government has repeatedly said that Aadhaar is voluntary.
He even quoted Finance Minister Arun Jaitley as saying in Parliament that “a man must have the right not to join”.
Once Parliament has said it is voluntary, can you right after that say it is mandatory? I don’t want to use the word schizophrenia because I respect the institutions so I will say it will be legislative dichotomy.Arvind Datar, Senior Advocate
When asked by the apex court whether there was any discussion or debate prior to passing Section 139AA of Income Tax Act, 1961 by the Finance Act, he said there was none to his knowledge.
However, Arghya Sengupta, who was representing the government, said there was a speech by the Finance Minister in reply to a Parliament query.
Emphasising that the judgement to this case will have far-reaching consequences, Datar said if Section 139AA is upheld, what stops the government from making Aadhaar mandatory for the Goods and Services Tax (GST).
Now their purpose is to promote Aadhaar so they say it will solve everything from black money to terror funding. They talk about economy of the country and also about international relations. Is this some kind of a herbal medicine?Arvind Datar, Senior Advocate
He said that the signs are dangerous. “The Attorney General says in this court that 99 percent of people have got it, who are you? You also fall in line. That kind of argument is the death knell of democracy.”
The AG in a lighter vein said earlier it was 139A, and now it is 139 AA. It is just a matter of another ‘A’. I will like to submit that this addition of an ‘A’ is the first encroachment overruling of a Supreme Court judgement in an unconstitutional way .Arvind Datar, Senior Advocate
In the previous hearing on Wednesday, Senior Advocate Shyam Divan had argued that making Aadhaar mandatory for filing income tax returns and obtaining a PAN will “destroy political and social choices”.
During the hearings, which began on April 29, the government, represented by Attorney General Mukul Rohatgi, had raised the problem of fake PAN being used, while the petitioners had said the government’s directive is unconstitutional.
On Tuesday, Rohatgi argued that right over one’s body is not absolute and called the arguments of bodily intrusion to take biometric data for Aadhaar as “bogus”.