'Govt cannot 'belittle' SC order holding Aadhaar voluntary'

Challenging the decision to make Aadhaar mandatory for PAN numbers and income tax filing, its opponents today said the government cannot "belittle" the Supreme Court order holding the unique identification number as voluntary.

"They cannot belittle the Supreme Court order. The sacrosanctity of an judicial order has to be preserved.

Please save the sanctity of the judgement of this court, otherwise it would have a dangerous precedent," senior advocate Arvind Datar, representing one of the petitioners, said.

He was referring to the 2015 apex court order which had held that Aadhaar was "purely voluntary".

However, the Supreme Court said it is yet to be "tested" whether Aadhaar violated protection of life and personal liberty granted under Article 21 of the Constitution, which was pending hearing for an authoritative pronouncement by a five-judge Constitution Bench.

The court, which reserved its verdict on a batch of pleas challenging the constitutional validity of a provision in the Income Tax Act to make Aadhaar mandatory for PAN, observed that the earlier orders making Aadhaar voluntary cannot be treated as an "mandamus" (judicial writ) against Parliament.

A bench comprising Justices A K Sikri and Ashok Bhushan said this after Datar argued that the government should not have enacted section 139AA in the Act to make Aadhhar mandatory for PANs as the apex court's five-judge bench order was clear that Aadhaar was voluntary and not mandatory.

The bench said the Aadhaar Act was passed in 2016, and when the earlier order was passed by the apex court in 2015, it was only on a government "scheme" which was an executive order. "Whether it (Aadhaar) is violative of Article 21 or not, it is yet to be tested by a constitution bench. If they (constitution bench) agree with the petitioners, then whether it is an administrative Act or an Act of Parliament, in both the cases, it cannot sustain. But what would be the law on it, it is not clear as on today," the bench said.

Regarding Datar's contentions regarding the earlier order passed by the apex court, the bench said "the judicial order was on the scheme (Aadhhar). The Supreme Court had passed the order and issued a mandamus to the government, that is executive. It cannot be a mandamus against Parliament".

The Centre had asserted in the Supreme Court that Aadhaar was made mandatory for PAN card to weed out fake PAN cards which were used for terror financing and circulation of blackmoney.

During the arguments, Datar referred to the five-judge bench order of October 2015 and contended that the apex court had said that Aadhaar was "purely voluntary" and it cannot be made mandatory till the matter is finally decided by a larger bench.

He said the Aadhaar Act was passed in 2016 and if the Centre wanted to make it mandatory, it could have removed the basis on which the apex court had passed the order in 2015.

To this, the bench asked, "Now, you are saying if the basis was removed, it could have been done. What is the basis of that order (passed by the apex court earlier) which could have been removed by the Parliament before enacting 139AA?"

Responding to this, Datar said the apex court had issued a mandamus that Aadhaar cannot be made mandatory and when a constitutional court passes an order, it should be respected.

The bench, however, observed, "At the time when order was passed, it was a scheme. Now the question is whether those directions would come in the way of Parliament while enacting a legislation."

The senior lawyer told the bench that once the apex court has passed an order or direction, irrespective of whether it was on a legislation or on an executive order, it has to be followed and it is binding. "They cannot belittle the Supreme Court order. The sacrosanctity of an judicial order has to be preserved. Please save the sanctity of the judgement of this court, otherwise it would have a dangerous precedent," he said.

Datar said if government wanted to make Aadhaar mandatory, it would have to necessarily amend the Act and if they would disregard a judicial order, then "no order of the Supreme Court would be safe".

"They have an agenda to push Aadhaar. They can do it but in a legal way," he said, adding that provisio of section 139AA was "draconian" as it says that if somebody does not have an Aadhaar, his or her PAN would be invalid from July 1.

"After saying Aadhaar is voluntary, the government is step by step making it mandatory. The moment a minority cannot do what they want to do, it will be the death knell to democracy," he said, urging the court to set aside section 139AA.

He also said it was surprising that Parliament, which had passed the Aadhaar Act last year as voluntary, has enacted section 139AA which makes it mandatory.

Datar referred to a statement given by a minister in Parliament and contended that it was clearly said that Aadhaar is mandatory. To this, the bench asked, "whether there was any debate on section 139AA in the Parliament".

When Datar said there was no debate in either the Lok Sabha or the Rajya Sabha on section 139AA, the Centre's counsel said the Finance Minister had spoken about it during the debate on the Finance Bill.

During the arguments, when Datar opposed the contention of Attorney General Mukul Rohatgi who had said that Aadhaar was made mandatory for PAN to weed out fake PAN cards in the country, the bench observed, "there has to be some beginning".

At the fag end of the hearing, the senior counsel urged the court to set aside section 139AA saying it was the "first encroachment" where the government was overrulling the apex court's direction and order and the court should stop it at the first instance itself.

He said that Rohatgi's submission, in which the Centre had said that India has signed an agreement - Foreign Account Tax Compliance Act (FATCA) - with USA, and a robust system was needed to check use of fake PANs, cannot be a ground to make Aadhaar mandatory for PAN.

However, the Centre's counsel told the bench that there was an international obligation and as per FATCA agreement, information about an individual, including his PAN detail, can be exchanged.

"It (FATCA) says that Union of India and US government will exchange information about individuals and if PAN detail given by us is found to be fake, it would be a major embarrasment for the Government of India," he said.

The apex court was hearing three petitions challenging the constitutional validity of Section 139AA of the Income Tax Act which was introduced through the latest budget and the Finance Act 2017.

Section 139AA 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.