Case Law Details

Case Name : Binoy Viswam- Petitioner Vs Union of India & Ors- Respondents (Supreme Court of India)
Appeal Number :
Date of Judgement/Order :
Related Assessment Year :
Courts : Supreme Court of India (622)

Text of Petition filed in Supreme Court on Mandatory Quoting of Aadhaar for filing ITR is as follows. Matter is expected to come up for hearing on Monday 17th April 2017.

IN THE SUPREME COURT OF INDIA
(ORIGINAL WRIT JURISDICTION)
WRIT PETITION (CIVIL) NO._____________ 2017

IN THE MATTER OF:

BINOY VISWAM                                      …PETITIONER

VERSUS

UNION OF INDIA & ORS.                          …RESPONDENTS

PAPER BOOK
(FOR INDEX KINDLY SEE INSIDE)

APPLICATION FOR SEEKING INTERIM DIRECTIONS

ADVOCATE FOR PETITIONER: MR. SRIRAM PARAKKAT

SYNOPSIS

The Petitioner is filing the present petition under Article 32 and praying this Honourable Court to invoke the power of this Honourable Court under Article 142 of the Constitution of India seeking an appropriate writ/direction to strike down S. 139AA of the Income Tax Act, 1961 as being in violation of Article 21 of the Constitution of India.

The Petitioner is a member of the CPI (National Executive Committee) who has done commendable service to the people and is a law abiding citizen of this nation. The Petitioner was the Forest Minister in the Government of Kerala. The Petitioner was earlier elected to the Kerala Legislative Assembly from Nadapuram constituency and served as Member, Estimates Committee; Chairman, Assurance Committee; and was one of the five members of the Constituency Delimitation Committee for the State of Kerala. The Petitioner is a senior Communist Party of India (CPI) leader and the president of the Engineers Federation of Kerala, Water Authority Association Kerala and Several other Trade Unions.

The Petitioner was elected as a Member of Kerala University Union and Syndicate member of Cochin University of Science and Technology and State Member of Kerala Agricultural University. During the student days, the Petitioner was State President of All India Student Federation (AISF). ThePetitioner also was elected as State Secretary of All India Youth Federation (AIYF) and served as Vice President of World Federation of Democratic youth (WDFY) and also Head of its Asia Pacific Commission. The Petitioner became a CPI member at the age of 18. He became Member of National Council of CPI during the period 1992–98.

That the Petitioner is a citizen of India, a public spirited person. The Petitioner’s PAN Number is AJXPV6198A. The Petitioner herein is a tax paying citizen and does not hold an Aadhaar card till date nor has he applied for the same in view of the legitimate expectation that the said scheme was not mandatory in view of the orders of this Hon’ble Court as well as the provisions of the Aadhaar Act. However, due to the aforesaid S. 139AA of the Income Tax Act, 1961, the Petitioner herein is being coerced into obtaining an Aadhaar card in complete violation of his right to privacy as enshrined under Article 21 of the Constitution of India.

It is submitted that by virtue of various orders of this Hon’ble Court dated 23.09.2013. 24.03.2014, 11.08.2015 and 15.10.2015, this Hon’ble 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. It is also noteworthy to mention that the Government of India enacted the Aadhar (Targeted Delivery of Financial and other subsidies, benefits and services), Act, 2016 and by virtue of S. 3 of the said Act, provided that every resident (as defined therein) would be entitled to obtain an Aadhaar Number. It is submitted that however, the said Act had not made the enrolment for Aadhaar compulsory. It is also pertinent to point out that the issue regarding the right to privacy being a fundamental right enshrined in Article 21 of the Constitution of India in the context of the Aadhaar scheme is pending consideration of a larger bench of this Honourable Court.

While matters stood thus, the Parliament enacted the Finance Act, 2017 in the last Budget Session and notably by virtue of an amendment to the earlier Bill, S. 139AA of the Income Tax Act, 1961 was introduced. The said provision read as under:

‘139AA. (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of July, 2017, quote Aadhaar number—

(i) in the application form for allotment of permanent account number;

(ii) in the return of income:

Provided that where the person does not possess the Aadhaar number, the Enrolment ID of Aadhaar application form issued to him at the time of enrolment shall be quoted in the application for permanent account number or, as the case may be, in the return of income furnished by him.

(2) Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette:

Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number.

(3) The provisions of this section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by the Central Government in this behalf, in the Official Gazette.

Explanation.—For the purposes of this section, the expressions—

(i) “Aadhaar number”, “Enrolment” and “resident” shall have the same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016;

(ii) “Enrolment ID” means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment.’

It is submitted that by virtue of the aforesaid provision, the Petitioner and other citizens, who had refrained from enrolling in the Aadhaar scheme due to prevailing apprehensions regarding the infringement of the right to privacy by state mechanisms, and further, respecting the orders of this Honourable Court and moreover, due to the assured belief that the scheme was purely voluntary, are being forced to give consent for the enrolment to the scheme. It is submitted that the bio metric and demographic information of the individual is sought to be forcefully obtained by the State Machinery by negating the requirement of consent, by making the consequences of non-enrolment drastic. It is submitted that said provision is an exemplary piece of colour able legislation inasmuch as the same seeks to achieve the result of compulsory enrolment to the Aadhaar scheme while masquerading as a move for bringing in transparency in income tax filings. It is submitted that the same is evident insofar as the non-enrolment by 1st July 2017 as mentioned in the impugned provision, shall render the PAN of the defaulting individual invalid, and thereby, attracting the consequences under the Income Tax Rules, 1962. It is submitted 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 Honourable Court. It is submitted that bringing about such a provision as an amendment to the Finance Bill, which is a money Bill, by curtailing discussion in the Upper House of the Parliament, without any compelling public interest for such expediency, clearly reveals that the move is arbitrary and therefore, falls foul of Article 14 of the Constitution of India.

Hence the instant writ petition.

LIST OF DATES

28.01.2009- The Unique Identification Authority of India (UIDAI) was established in January 2009 as part of the Planning Commission and as an agency of the Government responsible for implementing the AADHAAR scheme. According to this scheme, every citizen of India is entitled to enrol herself/himself with it and get a unique, randomly selected 12- digit number. For such enrolment, every person so intending would have to provide his/her personal information along with bio metric details such as finger-prints and iris scan for future identification. Accordingly, a centralised database would be created under the UIDAI with all the above information. This was the first indication of the use of bio metrics.

It would be pertinent to mention that enrolment under the UIDAI scheme is on a purported voluntary basis – however, the harsh disqualification attached to non enrolment, virtually makes enrolment compulsory.

September 2010- Aadhaar Enrolment began in September 2010. One of the objects of the entire project was non-duplication and elimination of fake identity cards, but reports and studies have proved otherwise.

03.12.2010- National Identification Authority of India, Bill 2010, (NIAI) was introduced in the Rajya Sabha.

13.12.2011 Standing Committee Report submitted to Parliament stating that both the Bill and project should be re-considered. Parliamentary Standing Committee on Finance rejected the National Identification Authority of India Bill, 2010. The Parliament’s Standing Committee on Finance while considering the Bill termed the project as directionless and conceptualised with no clarity of purpose. The committee also expressed its reservations on the technology used for the project calling it “untested, unproven, unreliable and unsafe”.

The report mentions about the comment of Justice Dr. M. Rama Jois, MP (Rajya Sabha) in his representation addressed to the Chairman, Standing Committee on Finance. He “pointed out since the NIDAI Bill is pending for consideration before the Standing Committee on Finance, implementation of the provisions of the Bill, issue of aadhaar numbers and incurring expenditure from the exchequer by the Government is a clear circumvention of Parliament, and therefore, should be kept in abeyance awaiting debate in and decision of both Houses of Parliament”.

It is further pertinent to note that in one of the responses issued by the Ministry in relation to the purported differences between the UK ID project (which was abandoned) and the UID Scheme, was that the Aadhar is not mandatory however the UK ID was intended to be
mandatory.

2012- A writ petition under Article 32 of the Constitution of India was preferred by Justice K.S. Puttuswamy, former Karnataka High Court Judge before this Honourable Court in W.P.(C) No. 494 of 2012 challenging the UID Scheme stating therein that the same does not have any statutory basis, and violated the fundamental right to privacy.

23.09.2013- This Honourable Court vide an order dated 23.09.2013 passed the following directions in the aforesaid writ petition in W.P. (C) No. 494 of 2012:

“In the meanwhile, no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issue a circular making it mandatory and when any person applies to get the Adhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.”

2013- In the meanwhile, various writ petitions were filed by public spirited citizens and organisations, challenging the validity of the Aadhaar Scheme and the same have been tagged by this Honourable Court along with W.P.(C) No. 494 of 2012.

24.03.2014- Vide an order dated 24.03.2014 in a special leave petition filed by the Unique Identification Authority of India (UIDAI), this Honourable Court passed the following order while tagging the said special leave petition along with W.P. (C) No. 494 of 2012:

In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith.”

26.05.2014- The present Government was formed at the Centre with the Bharatiya Janata Party coming into power as the single largest party in the 2014 Lok Sabha Elections with an overwhelming support of 335 members in the lower house of the Parliament and Mr. Narendra Modi was appointed as the Prime Minister of India. However, it is pertinent to note that the ruling party did not have a majority in the Upper House of the Parliament.

11.08.2015 After hearing detailed arguments on the side of the various petitioners as well as the
Attorney General of India, a three Judge Bench of this Hon’ble Court vide order dated 11.08.2015 referred the issue relating the right to privacy as being a fundamental right under the Constitution to be considered by a larger Bench. However, the Hon’ble Court also
passed an interim order as under:

“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;

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

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 food grains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;

4. The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.”

15.10.2015- Thereafter, certain applications for modification of the aforesaid order dated 11.08.2015 was filed before this Honourable Court by the Union of India and a Five Judge Bench of this Honourable Court was pleased to pass the following order dated 15.10.2015:

“3. After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employement Guarantee Scheme 12 (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015.

4. We impress upon the Union of India that it shall strictly follow all the earlier orders
passed by this Court commencing from 23.09.2013.

5. We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”

Thus, from a perusal of the various interim orders passed by this Honourable Court it is amply clear that the Honourable Court has reiterated the position that although there is no interim order against the collection of information from the citizens for the purpose of enrolment for Aadhaar, the scheme is purely voluntary and the same is not to be made mandatory by the Government.

25.03.2016- While matters stood thus, the Government of India sought to bring in a legislation to govern the Aadhaar Scheme vide the Aadhaar (Targeted Delivery of Financial and other subsidies, benefits and services Act), 2016 (hereinafter referred to as “the Act”) which was passed by the Lower House of the Parliament. Since the same was introduced as a money bill, the Upper House returned the same with some suggestions which were rejected by the Lower House. Finally, the Act received presidential assent on 25.03.2016. It is pertinent to note that the said Act provided for various provisions for Enrolment, Authentication, setting up of Unique Identification Authority of India, Protection of Information, and some offence and penalties for violations of provisions of the Act.

S. 3 of the said Act provided that the same every resident shall be entitled to obtain an Aadhaar number by submitting their demographic and bio metric information by undergoing a process of enrolment.

Furthermore, although it was widely advised the AADHAAR would be a onetime measure, S. 6 of the Act clearly provided that the authority under the Act could require the number holders to update their demographic and bio metric information from time to time.

It is pertinent to note that although S. 28 and S. 29 of the Act purported to provide for the protection of information, there were no stringent provisions for protecting the privacy of the individual. The Act only mentioned that the Authority “shall ensure” the security of the information collected. S. 29 provided only for the non sharing of core bio metric information at all costs and did not apply the same to other information collected under the Act. The offences and penalties as laid out in Chapter VII of the Act were ineffective in protection of the privacy of the individual insofar as the cognisance of the same could only be taken upon a complaint made by the Authority and not be the individual aggrieved. Furthermore., S. 33(2) of the Act suspended the operation of the provisions in S. 28 and S. 29 of the Act at the behest of the Government in the interest of the omnibus phrase “national security” which was not defined anywhere.

In view of the fact that the Petitioner herein who was apprehensive of any infringement of his right to privacy and the complete lack of protection offered by the said Act, did not enrol for the Aadhaar scheme and has not availed an Aadhaar number till date. It is pertinent to note that Petitioner herein was even more apprehensive in view of the fact that there being no legislation on protection of privacy that was being considered by the Parliament unlike in other jurisdictions like the USA. This was also possible as the Act did not provide that obtaining the Aadhaar was mandatory.

2015-2016- Various petitions filed before this Honourable Court challenging the provisions of the Act and this Court was pleased to direct that the said matters be tagged along with W.P. (C) No. 494 of 2012.

01.02.2017- While matters stood thus, the Government of India in the Budget Session, the Finance Minister introduced the Finance Bill, 2017 and the same was tabled in Parliament on 01.02.2017.

22.03.2017- However, when the Finance Bill was taken up for consideration in the Lower House of the Parliament, various amendments were circulated to various Acts dealing with matters of streamlining of tribunals, donations to political parties etc.

However, vide clause 56 to the Finance Bill, the Government sought to introduce S. 139AA to the Income Tax Act, 1961. The aforesaid provision is reproduced herein:

‘139AA. (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of July, 2017, quote Aadhaar number—

(i) in the application form for allotment of permanent account number;

(ii) in the return of income:

Provided that where the person does not possess the Aadhaar number, the Enrolment ID of Aadhaar application form issued to him at the time of enrolment shall be quoted in the application for permanent account number or, as the case may be, in the return of income furnished by him.

(2) Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette:

Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number.

(3) The provisions of this section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by the Central Government in this behalf, in the Official Gazette.

Explanation.—For the purposes of this section, the expressions—

(i) “Aadhaar number”, “Enrolment” and “resident” shall have the same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016;

(ii) “Enrolment ID” means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment.’

Thus, vide the aforesaid amendment, the Government of India by means of a money bill and bringing about an amendment to the Income Tax Act, 1961 sought to make the obtaining of Aadhaar card compulsory on every Indian. It is submitted that the said provision also provided for an arbitrary cut-off date of 1st July, 2017. It is also pertinent to note that the Petitioner herein, who holds a valid permanent account number (PAN), and who has been given to believe by virtue of the stand taken by the Union Government as well as the orders of this Honourable Court that obtaining of an Aadhaar is purely voluntary is being coerced by the said provision to obtain one lest he wishes to suffer the penal consequences of not having a permanent account number. It is submitted that every citizen is obligated by law to file his returns of income and the Petitioner herein has diligently being doing so for the past many years, but however, by the aforesaid provision, if the Petitioner herein does not obtain/enrol for an Aadhaar he risks the consequences of being a tax defaulter. Furthermore, when the issue regarding the fundamental right of privacy in the context of the Aadhaar scheme is pending for consideration of this Honourable Court, the introduction of the said provision to forcefully collect the bio-metric and demographic information of the Petitioner herein and other citizens of the country who have not yet enrolled, is a sinister move to undermine the larger issue and amounts to a fraud on the Constitution.

29.03.2017 The Upper House of the Parliament returned the Finance Bill, 2017 with proposed amendments to the same for consideration of the Lower House.

30.03.2017- The amendments proposed by the Upper House was rejected by the Lower House and the Finance Bill, 2017 in its entirety was enacted by the Parliament.

31.03.2017-  On 31.03.2017, the aforesaid Bill received Presidential Assent and was published in the Official Gazette as the Finance Act, 2017.

.04.2017 Aggrieved by the blatant violation of the fundamental right of the Petitioner herein under Article 21 of the Constitution of India, the Petitioner is constrained to prefer the instant writ petition under Article 32 of the Constitution.

RESPONDENT NO. 4

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING AN APPROPRIATE WRIT AND DIRECTION STRIKING DOWN S. 139AA OF THE INCOME TAX ACT, 1961 AS BEING UNCONSTITUTIONAL AND IN VIOLATION OF THE RIGHT TO PRIVACY AS ENSHRINED UNDER ARTICLE 21 OF THE CONSTITTUTION OF INDIA

To,

The Honourable Chief Justice and

His Companion Justices

of the

Honourable Supreme Court of India.

Most Respectfully Showeth:

1. The Petitioner is filing the present petition under Article 32 and seeking to invoke the power of this Honourable Court under Article 142 of the Constitution of India seeking an appropriate writ/direction to strike down S. 139AA of the Income Tax Act, 1961 as being in violation of Article 21 of the Constitution of India. The Petitioner is a member of CPI (National Executive Committee) who has done commendable service to the people and is a law abiding citizen of this nation. The Petitioner was the Forest Minister in the Government of Kerala. The Petitioner was earlier elected to the Kerala Legislative Assembly from Nadapuram constituency and served as Member, Estimates Committee; Chairman, Assurance Committee; and was one of the five members of the Constituency Delimitation Committee for the State of Kerala. The Petitioner is a senior Communist Party of India (CPI) leader and the president of the Engineers Federation of Kerala, Water Authority Association Kerala and Several other Trade Union.

The Petitioner was elected as Member of Kerala University Union and Syndicate member of Cochin University of Science and Technology and State Member of Kerala Agricultural University. During the student days, the Petitioner was State President of All India Student Federation (AISF). The Petitioner also was elected as State Secretary of All India Youth Federation (AIYF) and served as Vice President of World Federation of Democratic youth (WDFY) and also Head of its Asia Pacific Commission. The Petitioner became a CPI member at the age of 18. He became Member of National Council of CPI during the period 1992–98.

1A. That the Petitioner is a citizen of India, a public spirited person. The Petitioner’s PAN Number is AJXPV6198A. The Petitioner herein is a tax paying citizen and does not hold an Aadhaar card till date nor has he applied for the same in view of the legitimate expectation that the said scheme was not mandatory in view of the orders of this Honourable Court as well as the provisions of the Aadhaar Act. However, due to the aforesaid S. 139AA of the Income Tax Act, 1961, the Petitioner herein is being coerced into obtaining an Aadhaar card in complete violation of his right to privacy as enshrined under Article 21 of the Constitution of India.

1 B. That there is no civil, criminal or revenue litigation, involving the Petitioner, which has or could have a legal nexus with the issue(s) involved in the instant petition under Article 32 of the Constitution of India.

1 C. Petitioner has also not filed any other or similar petition before any court of law in India concerning the present issues & reliefs. The Petitioner is also preferring the present Writ Petition in the interest of general public and to bring repute to Nation, apart from being personally aggrieved. The Petitioner in no way are guided by self-gain or for gain of any other person/institution/ body etc. and that there is no motive other than public interest and protection of his fundamental rights in filing the writ petition.

1D. That no government authority was moved similar Petition before any court of law in India concerning the present issues & reliefs.

2. The short facts and apprehensions giving rise to the present petition are as follows: –

a. The Unique Identification Authority of India (UIDAI) was established in January 2009 as part of the Planning Commission and as an agency of the Government responsible for implementing the AADHAAR scheme. According to this scheme, every citizen of India is entitled to enrol herself/himself with it and get a unique, randomly selected 12-digit For such enrolment, every person so intending would have to provide his/her personal information along with bio metric details such as finger-prints and iris scan for future identification. Accordingly, a centralised database would be created under the UIDAI with all the above information. This was the first indication of the use of bio metrics.

It would be pertinent to mention that enrolment under the UIDAI scheme is on a purported voluntary basis – however, the harsh disqualification attached to non-enrolment, virtually makes enrolment compulsory.

b. Aadhaar Enrolment began in September 2010. One of the objects of the entire project was non-duplication and elimination of fake identity cards, but reports and studies have proved otherwise.

c. On 03.12.2010 the National Identification Authority of India, Bill 2010, (NIAI) was introduced in the Rajya Sabha.

d. On 13.12.2011 the Standing Committee Report submitted to Parliament stating that both the Bill and project should be re-considered. The Parliamentary Standing Committee on Finance rejected the National Identification Authority of India Bill, 2010. The Parliament’s Standing Committee on Finance while considering the Bill termed the project as directionless and conceptualised with no clarity of purpose. The committee also expressed its reservations on the technology used for the project calling it “untested, unproven, unreliable and unsafe”. The report mentions about the comment of Justice Dr. M. Rama Jois, MP (Rajya Sabha) in his representation addressed to the Chairman, Standing Committee on Finance. He “pointed out since the NIDAI Bill is pending for consideration before the Standing Committee on Finance, implementation of the provisions of the Bill, issue of aadhaar numbers and incurring expenditure from the exchequer by the Government is a clear circumvention of Parliament, and therefore, should be kept in abeyance awaiting debate in and decision of both Houses of Parliament”.

It is further pertinent to note that in one of the responses issued by the Ministry in relation to the purported differences between the UK ID project (which was abandoned) and the UID Scheme, was that the Aadhar is not mandatory however the UK ID was intended to be mandatory. True copy of the report of the Parliamentary Standing Committee on Finance
dated 13.12.2011 is annexed herewith and marked as “Annexure P-1”. (pages to )

e. A writ petition under Article 32 of the Constitution of India was preferred by Justice K.S. Puttuswamy, former Karnataka High Court Judge before this Honourable Court in W.P. (C) No. 494 of 2012 challenging the UID Scheme stating therein that the same does not have any statutory basis, and violated the fundamental right to privacy.

f. This Honourable Court vide an order dated 23.09.2013 passed the following directions in the aforesaid writ petition in W.P. (C) No. 494 of 2012:

“In the meanwhile, no person should suffer for not getting the Adhaar card in spite of the fact that some authority had issue a circular making it mandatory and when any person applies to get the Adhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.”

True copy of the order dated 23.09.2013 of this Hon’ble Court in W.P. (C) No. 494 of 2012 is annexed herewith and marked as “Annexure P-2”. (pages to )

g. In the meanwhile, various writ petitions were filed by public spirited citizens and organisations, challenging the validity of the Aadhaar Scheme and the same have been tagged by this Honourable Court along with W.P.(C) 494 of 2012.

h. Vide an order dated 24.03.2014 in a special leave petition filed by the Unique Identification Authority of India (UIDAI), this Honourable Court passed the following order while tagging the said special leave petition along with W.P. (C) No. 494 of 2012:

“In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith.”

True copy of the order dated 24.03.2014 of this Honourable Court in SLP (Crl.) No. 2524 of 2014 is annexed herewith and marked as “Annexure -3”.P (pages to )

i. On 26.05.2014 the present Government was formed at the Centre with the Bharatiya Janata Party coming into power as the single largest party in the 2014 Lok Sabha Elections with an overwhelming support of 335 members in the lower house of the Parliament and Mr. Narendra Modi was appointed as the Prime Minister of India. However, it is pertinent to note that the ruling party did not have a majority in the Upper House of the Parliament.

j. In the meanwhile, after hearing detailed arguments on the side of the various petitioners as well as the Attorney General of India, a three Judge Bench of this Honourable Court vide order dated 11.08.2015 referred the issue relating the right to privacy as being a fundamental right under the Constitution to be considered by a larger Bench. However, the Honourable Court also passed an interim order as under:

“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;

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

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 food grains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;

4. The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.”

True copy of the order dated 11.08.2015 of this Honourable Court in W.P. (C) No. 494 of 2012 is annexed herewith and marked as “Annexure P-4”. (pages to )

k. Thereafter, certain applications for modification of the aforesaid order dated 11.08.2015 was filed before this Honourable Court by the Union of India and a Five Judge Bench of this Honourable Court was pleased to pass the following order:

“3. After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employement Guarantee Scheme 12 (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Providend Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015.

4. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013.

5. We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”

Thus, from a perusal of the various interim orders passed by this Honourable Court it is amply clear that the Honourable Court has reiterated the position that although there is no interim order against the collection of information from the citizens for the purpose of enrolment for Aadhaar, the scheme is purely voluntary and the same is not to be made mandatory by the Government. True copy of the order dated 15.10.2015 of this Honourable Court in W.P. (C) No. 494 of 2012 is annexed herewith and marked as “Annexure – P 5”. (pages to )

1. While matters stood thus, the Government of India sought to bring in a legislation to govern the Aadhaar Scheme vide the Aadhaar (Targeted Delivery of Financial and other subsidies, benefits and services Act), 2016 (hereinafter referred to as “the Act”) which was passed by the Lower House of the Parliament. Since the same was introduced as a money bill, the Upper House returned the same with some suggestions which were rejected by the Lower House. Finally, the Act received presidential assent on 25.03.2016.

It is pertinent to note that the said Act provided for various provisions for Enrolment, Authentication, setting up of Unique Identification Authority of India, Protection of Information, and some offence and penalties for violations of provisions of the Act.

S. 3 of the said Act provided that the same every resident shall be entitled to obtain an Aadhaar number by submitting their demographic and bio metric information by undergoing a process of enrolment.

Furthermore, although it was widely advised the AADHAAR would be a onetime measure, S. 6 of the Act clearly provided that the authority under the Act could require the number holders to update their demographic and bio metric information from time to time.

It is pertinent to note that although S. 28 and S. 29 of the Act purported to provide for the protection of information, there were no stringent provisions for protecting the privacy of the individual. The Act only mentioned that the Authority “shall ensure” the security of the information collected. S. 29 provided only for the non sharing of core bio metric information at all costs and did not apply the same to other information collected under the Act. The offences and penalties as laid out in Chapter VII of the Act were ineffective in protection of the privacy of the individual insofar as the cognisance of the same could only be taken upon a complaint made by the Authority and not be the individual aggrieved. Furthermore, S. 33(2) of the Act suspended the operation of the provisions in S. 28 and S. 29 of the Act at the behest of the Government in the interest of the omnibus phrase “national security” which was not defined anywhere. True copy of the Aadhaar ((Targeted Delivery of Financial and other subsidies, benefits and services Act), 2016 as published in the Official Gazette is annexed herewith and marked as “Annexure -6”.P (pages to )

m. In view of the fact that the Petitioner herein was legitimately apprehensive of any infringement of his right to privacy in view of the complete lack of protection offered by the said Act, he did not enrol for the Aadhaar scheme and has not availed an Aadhaar number till date. It is pertinent to note that Petitioner herein was even more apprehensive in view of the fact that there being no legislation on protection of privacy that was being considered by the Parliament unlike in other jurisdictions like the USA. This was also possible as the Act did not provide that obtaining the Aadhaar was mandatory.

n. Various petitions filed before this Honourable Court challenging the provisions of the Act and this Court was pleased to direct that the said matters be tagged along with W.P. (C) No. 494 of 2012.

o. While matters stood thus, the Government of India in the Budget Session, the Finance Minister introduced the Finance Bill, 2017 and the same was tabled in Parliament on 01.02.2017.

However, when the Finance Bill was taken up for consideration in the Lower House of the Parliament, various amendments were circulated to various Acts dealing with matters of streamlining of tribunals, donations to political parties etc.

However, vide clause 56 to the Finance Bill, the Government sought to introduce S. 139AA to the Income Tax Act, 1961. The aforesaid provision is reproduced herein:

‘139AA. (1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of July, 2017, quote Aadhaar number—

(i) in the application form for allotment of permanent account number;

(ii) in the return of income:

Provided that where the person does not possess the Aadhaar number, the Enrolment ID of Aadhaar application form issued to him at the time of permanent account number or, as the case may be, in the return of income furnished by him.

(2) Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette:

Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number.

(3) The provisions of this section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by the Central Government in this behalf, in the Official Gazette.

Explanation.—For the purposes of this section, the expressions—

(i) “Aadhaar number”, “Enrolment” and “resident” shall have the same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016;

(ii) “Enrolment ID” means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment.’

q. Thus, vide the aforesaid amendment, the Government of India by means of a money bill and bringing about an amendment to the Income Tax Act, 1961 sought to make the obtaining of Aadhaar card compulsory on every Indian. It is submitted that the said provision also provided for an arbitrary cut-off date of 1st July, 2017. It is also pertinent to note that the Petitioner herein, who holds a valid permanent account number (PAN), and who has been given to believe by virtue of the stand taken by the Union Government as well as the orders of this Honourable Court that obtaining of an Aadhaar is purely voluntary is being coerced by the said provision to obtain one lest he wishes to suffer the penal consequences of not having a permanent account number. It is submitted that every citizen is obligated by law to file his returns of income and the Petitioner herein has diligently being doing so for the past many years, but however, by the aforesaid provision, if the Petitioner herein does not obtain/enrol for an Aadhaar he risks the consequences of being a tax defaulter. Furthermore, when the issue regarding the fundamental right of privacy in the context of the Aadhaar scheme is pending for consideration of this Hon’ble Court, the introduction of the said provision to forcefully collect the biometric and demographic information of the Petitioner herein and other citizens of the country who have not yet enrolled, is a sinister move to undermine the larger issue and amounts to a fraud on the Constitution.

r. The Upper House of the Parliament returned the Finance Bill, 2017 with proposed amendments to the same for consideration of the Lower House on 29.03.2017.

s. The amendments proposed by the Upper House was rejected by the Lower House and the Finance Bill, 2017 in its entirety was enacted by the Parliament on 30.03.2017.

t. On 31.03.2017, the aforesaid Bill received Presidential Assent and was published in the Official Gazette as the Finance Act, 2017. True copy of the Finance Act, 2017 as published in the Official Gazette on 31.03.2017 is annexed herewith and marked as “Annexure P-7”. (pages to )

u. Aggrieved by the blatant violation of the fundamental right of the Petitioner herein under Article 21 of the Constitution of India, the Petitioner is constrained to prefer the instant writ petition under Article 32 of the Constitution.

3. The Petitioner has not filed any other or similar petition before any court of law in India concerning the present issues & reliefs. Petitioner has also not approached the authority concerned for similar issues and reliefs due to urgency involved in the matter. Petitioner is filing this petition on the following grounds among others:

GROUNDS

a. BECAUSE S. 139AA of the Income Tax Act, 1961 inasmuch as the same makes it compulsory to obtain an AADHAAR card or enrol for the same is in violation of the right to privacy under Article 21 of the Constitution of India.

b. BECAUSE this Honourable Court has time and again held that the right to privacy is a fundamental right and is a facet of the right to life and personal liberty as enshrined under Article 21 of the Constitution of India.

c. BECAUSE this Honourable Court held in the decision of Gobind V. State of M.P. reported in (1975) 2 SCC 148, this Honourable Court recognised the right of privacy as a fundamental right in the context of surveillance by the State.

d. BECAUSE it is submitted that this Honourable Court in the subsequent decisions of PUCL v. Union of India reported in (1997) 1 SCC 301 and the decision of R. Rajagopal & Anr. V. State of Tamil Nadu & Ors. Reported in (1994) 6 SCC 632, have held that the right to privacy emanates from the concept of personal liberty as guaranteed under Article 21 of the Constitution of India.

e. BECAUSE the collection and obtaining of bio metric information from the individuals/ citizens amounts to a blatant infringement of the right to privacy and therefore, the Aadhaar scheme is in violation of Article 21 of the Constitution of India.

f. BECAUSE the Aadhaar scheme was challenged by way of various writ petitions before this Honourable Court and the same are pending consideration of a larger Bench of this Honourable Court. It is submitted various orders of this Honourable Court were passed and are in vogue, whereby, this Honourable Court has clarified on the submissions of the Government of India, that the Aadhaar scheme is purely voluntary and on the basis of the consent given by the citizen. However, vide S. 139AA of the Income Tax Act, 1961, the Union of India has made the obtaining/enrolment for Aadhaar mandatory.

g. BECAUSE S. 139AA of the Income Tax Act, 1961 provides that the Aadhaar number or the enrolment number provided at the time of enrolment for Aadhaar is to be quoted for the purposes of applying for a permanent account number as well as for the filing of income tax returns. It is submitted the proviso to S. 139AA (2) provides that in case a person who has obtained a PAN as on 1st July 2017, does not quote the Aadhar number to such authority as may be prescribed, the PAN shall stand invalidated. It is submitted that therefore, for filing of returns by June 30, 2017, every citizen ought to have enrolled for the Aadhar scheme or obtained an Aadhaar number. Therefore, 139AA of the Income Tax Act, 1961 provides for compulsory enrolment to the scheme.

h. BECAUSE the AADHAAR Act did not provide for compulsory enrolment for an Aadhaar card and the various orders passed by this Hon’ble Court stated that the same was a voluntary scheme. However, by virtue of the impugned section, the Government of India has virtually made the Aadhaar compulsory without providing for the same in the parent legislation. It is submitted that S.3 of the Act clearly provides that a resident shall be entitled to obtain an Aadhaar number, however, does not provide that it was obligatory on the resident to obtain the same. It is submitted that until the enactment of S. 139AA of the Income Tax Act, 1961, there was no compulsion even under the Aadhaar Act to enroll for the scheme.

i. BECAUSE the enactment of S. 139AA of the Act is in complete violation of the various orders of this Honourable Court namely, orders dated 23.09.2013, 23.04.2014, 08.2015 and 15.10.2015 of this Honourable Court whereby this Honourable Court had time and again directed that the Aadhaar scheme was purely voluntary and could only be made mandatory for very limited benefit schemes as mentioned in the aforesaid orders. However, vide the enactment of S. 139AA of the Act, the Parliament has in blatant violation of the aforesaid orders, made it compulsory to enrol in the Aadhaar scheme by 1st July 2017.

j. BECAUSE by virtue of S. 139AA of the Income Tax Act, 1961, the Aadhaar scheme has been made compulsory on every tax paying citizen of India. It is submitted that although the collection of bio metric and demographic information for the purposes of enrolment for Aadhaar is still purportedly by consent, by virtue of S. 139AA of the Income Tax Act, 1961, the Union of India has sought to forcefully obtain the consent by making the consequences of non-enrolment drastic. It is submitted that S. 139AA(2) provides that the PAN shall be invalid if the Aadhaar number is not quoted to the authority to be prescribed, the PAN shall be rendered invalid. It is submitted that therefore the consequences of not having a valid PAN is sought to be appropriated and applied to non-enrolment for the Aadhaar scheme. It is submitted that Rule 114B of the Income Tax Rules, 1962 provides for 18 basic transactions like purchase of immovable property, deposits to bank accounts, purchasing of bank drafts etc. above a particular amount for which the quoting of a PAN is compulsory. It is submitted that by virtue of S. 139AA, the non enrolment for Aadhaar scheme, will make it impossible for citizens to carry out the said transactions. It is submitted that the aforesaid drastic consequences for non-enrolment for Aadhaar virtually forces consent to be given by the citizens who wish to refrain from the scheme for fear of breach of the fundamental right to privacy.

k. BECAUSE S. 139AA of the Income Tax Act, 1961 is a colour able piece of legislation inasmuch the same under the garb of increased transparency in return filings seeks to make the enrolment for Aadhaar scheme mandatory. It is submitted that a regime of PAN is already in place and the same has been functioning for many years, and the surreptitious move on the part of the Government to mandatory quote Aadhaar for tax returns is with the intention of compulsorily enrolling every citizen for the Aadhaar scheme.

l. BECAUSE this Honourable Court is seized of the issue of the fundamental right to privacy under Article 21 of the Constitution of India and while the constitution of a larger bench is pending, the enactment of S. 139AA of the Act is with the sole intention of rendering the reference to a larger bench nugatory.

m. BECAUSE S. 139AA of the Income Tax Act, 1961 which makes enrolment for Aadhaar mandatory, without making appropriate amendments to the Aadhar Act which till date does not prescribe that the enrolment is mandatory, in a Finance Bill was with the intention of avoiding the Rajya Sabha where the ruling party does not have a majority. It is submitted that the said amendment is completely contrary to Article 110 of the Constitution of India which defines a money bill. It is submitted the decision of the Speaker in this regard although is deemed to final as per Article 122 of the Constitution, this Honourable Court has held that the same can be made subject to judicial review in cases of gross illegality or violations of the provisions of the Constitution. It is submitted that the introduction of a provision that mandates Aadhaar and provides for penal consequences of the same, which is in breach of the fundamental right of privacy by a money bill to avoid discussion in the Rajya Sabha without any perceivable compelling public interest to do so, amounts to subverting the democratic process and playing a fraud on the constitution. Reliance is placed on the decision of this Honourable Court in Raja Ram Pal V. Honourable Speaker, Lok Sabha reported in (2007) 3 SCC 184 for the proposition that the decisions of the speaker may be made subject to judicial review.

n. BECAUSE the cut off date of 1st July 2017 is arbitrary and is without any basis and therefore, the same ought to be struck down as being in violation of Article 14 of the Constitution of India. It is submitted that the consequences of not having an Aadhaar card as on 1st July 2017 is drastic and affects the basic commercial transacting capacity of the individual. It is submitted
that the same is sought to be done at a time when the issue is pending consideration of a larger Bench of this Honourable Court. However, without an inkling of compelling public interest to ensure enrolment for the Aadhaar scheme by 1st July 2017, the enactment of S. 139 AA of the Income Tax Act, 1961 is clearly with the dubious intent of by-passing the reference that is
pending before this Honourable Court. Therefore, the cutoff date is clearly arbitrary and illegal.

o. BECAUSE even assuming that the right to privacy is not absolute and being a facet of Article 21 which is qualified by the procedure established by law phrase, it has been held by this Honourable Court in Maneka Gandhi Union of India reported in (1978) 1 SCC 248, that the said procedure should be fair, reasonable and cannot be unfair, arbitrary, oppressive or unreasonable. It is submitted that insofar as the bio metric and demographic information of an individual is sought to be forcefully obtained by the State machinery by virtue of S. 139AA of the Income Tax Act, 1961 by negating the requirement of consent, the said provision is oppressive and therefore, does not meet the standards of procedure established by law.

p. BECAUSE the Petitioner herein has been led to believe by virtue of the orders of this Honourable Court as well as the Aadhaar Act that the enrolment to the Aadhaar scheme is not mandatory. It is submitted that the impugned provision by making the same mandatory without any compelling public interest to justify the expediency, smacks of arbitrariness and unreasonableness and ought to be struck down on that ground alone.

q. Any other grounds as may be raised by the Petitioner at the time of hearing.

PRAYERS

In the facts and circumstances as above, the Petitioner prays that this Honourable Court may be pleased to invoke the power of this Honourable Court under Article 32 & Article 142 of the Constitution of India and any other relevant Article of the Constitution of India and: –

(I) Issue a writ of Mandamus and/or Certiorari and/or any other appropriate writ and/or direction declaring S. 139AA of the Income Tax Act, 1961 as unconstitutional, illegal and arbitrary and in violation of Articles 14 and 21 of the Constitution of India; and

(II) Pass any other or further orders, as this Hon’ble Court may deem fit and proper

MOST RESPECTFULLY SHOWETH:-

1. The Petitioner is filing the present petition under Article 32 and seeking to invoke the power of this Hon’ble Court under Article 142 of the Constitution of India seeking an appropriate writ/direction declaring S. 139AA of the Income Tax Act, 1961 as unconstitutional, illegal and arbitrary and in violation of Articles 14 and 21 of the Constitution of India.

2. The contents of the instant writ petition are not being repeated for the sake of brevity and the same may be read as part and parcel of the instant application.

3. That in terms of reasons and grounds mentioned in the present petition Respondent is required to give reasonable time to people to make alternate financial arrangements to avoid large scale mayhem and chaos.

PRAYER

It is, therefore, most respectfully prayed that this Honourable Court be pleased to: –

(a) Pass an order to suspend the operation of S. 139AA of the Income Tax Act, 1961, subject to the outcome of the instant writ petition.

(b) Pass such other order (s) as may deem fit and proper in the facts and circumstances of the case.

 

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