Aadhaar/PAN: SC Judgment Tomorrow, Issues And Options Before The Court

A two Judge Bench of the Supreme Court of India will pronounce its Judgment, in petitions challenging the constitutional validity of Section 139AA of the Income Tax Act, which made Aadhaar mandatory for filing Income-Tax returns, at 2PM tomorrowOn May,4 the Bench of Justices AK Sikri and Ashok Bhushan had reserved the Judgment in the Petitions filed by CPI leader Benoy Vishwam, SG Vombatkere and Bezwada Wilson. Read the Details of the Case Here Here is an analysis by Constitutional Expert Gautam Bhatia on the issues before the Court and options before the CourtIssues before the CourtThe Supreme Court has to resolve the following issues:(a) Did S. 139AA “take away the basis” of the Supreme Court’s earlier orders on Aadhaar being voluntary, or is it an impermissible legislative overruling of a binding Court order?(b) Does S. 139AA violate bodily integrity under Article 21? If it does, then does it serve a compelling State interest? And is it narrowly-tailored? Is it analogous to other laws such as the Registration Act, the Census Act, or the Passports Act, or is it much broader and far-reaching then those statutes? When deciding this issue, the Court will also have to decide how much to defer to the Union’s claims on duplication and black money, in view of the fact that the Petitioners strongly contested the validity of these claims. One interesting aspect here is how the Court will choose to allocate burdens of proof: will it, if it finds an infringement of bodily integrity, hold that the State must then justify it on the touchstone of compelling interest and narrow tailoring?(c) Does S. 139AA violate Article 19(1)(g)? If so, is it proportionate, in view of statistics on the number of duplicate PANs and the existence of duplicate Aadhaars?(d) In view of the fact that the Aadhaar Act makes Aadhaar voluntary, does S. 139AA fail the discriminatory purpose prong of Article 14 by classifying taxpayers into those who have voluntarily taken an Aadhaar number, and those who haven’t?(e) Has the State shown a “rational nexus” under Article 14, with its goals of preventing black money and duplication? Here again, the issue of deference will become decisive: will the Court hold 139AA to be an economic statute, and take the Union’s claims at face value? Or will it, in view of the contentions involving fundamental rights, subject the Union to a stricter scrutiny in justifying its contention about Aadhaar being the panacea for preventing tax evasion?(f) Does 139AA amount to compelled speech under Article 19(1)(a)?(g) Does 139AA violate the principle of informational self-determination under Article 21?(e) Is there an implied limitation upon legislative competence as far as laws concerning the human body are concerned? If yes, then does 139AA violate this implied limitation?Options before the CourtThe Court may do one of the following six things:(a) Strike down S. 139AA as unconstitutional.(b) Accept Mr Divan’s argument, and hold that S. 139AA is voluntary by reading “shall” as “may”.(c) Accept Mr Datar’s argument and “harmoniously construe” S. 139AA and the Aadhaar Act by holding that those who have already procured and Aadhaar number might be required to quote it, but those who haven’t cannot be compelled to enroll.(d) Find that issues or privacy are essential to decide the case, refer the matter to the pending Constitution Bench, and stay its operation in the meantime.(e) Refer without staying(f) Uphold S. 139AA entirely, but leave it open to the Petitioners to challenge it on the grounds of privacy, once the Constitution Bench finally decides the main Aadhaar challenge.This analysis was taken from Gautam Bhatia's Commentary on Aadhaar/PAN case published in his blog 'Indian Constitutional Law and Philosophy'.Read the full commentary here

Aadhaar/PAN: SC Judgment Tomorrow, Issues And Options Before The Court

Gautam Bhatia

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