On June 9, the Supreme Court, while deciding three writ petitions filed by citizens “who claim themselves to be public-spirited persons,” upheld the constitutional validity of Section 139AA of the Income-Tax Act, 1961 (IT Act), which makes it mandatory to link an individual assessee’s Aadhaar number with his/her PAN number. Much to the relief of the petitioners, the court also held that those assessees who are not Aadhaar card holders need not comply with the said provision. However, while arriving at such a conclusion, the court made a few uncharacteristic observations which may inadvertently help the government in its mission to make Aadhaar an inseparable part of our lives.
The Planning Commission constituted the Unique Identification Authority of India through a notification dated January 28, 2009. Thus, the Aadhaar scheme did not have any statutory backing when it was launched and continued to operate in exercise of the executive power of the government until 2016, when the government enacted the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act). On August 11, 2015, the Supreme Court passed an interim order stating that the Aadhaar card was to be used only for the PDS scheme and for the LPG distribution scheme, with a clear mandate that it ought not to be used by the government for any other purpose. This was later echoed by a constitution bench of the Supreme Court, which held as follows:
“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.”
The primary contention of the petitioners in the instant challenge was that the parliament did not have the legislative competency to enact section 139AA of the IT Act violating the interim orders of the court. It is pertinent to note that the parent statute, i.e., the Aadhaar Act, does not make it mandatory for citizens to obtain Aadhaar cards. The petitioners further submitted that the only way by which the parliament could have overcome the interim orders of the court was by removing the very basis of those orders; in the instant case, that could have been done by making it mandatory for all citizens to obtain Aadhaar card under the Aadhaar Act.
Rejecting these submissions, the Supreme Court held that the parliament was competent to enact section 139AA of the IT Act as the said interim orders relied upon by the petitioners were passed when the Aadhaar Act was not even enacted. Further, the court held that the Aadhaar Act and the law contained in section 139AA of the IT Act deal with two different situations and operate in different fields. This is a worrisome proposition for the simple reason that it gives the government a much-needed escape route from the interim orders of the court. The government can, now, amend any central statute, including non-welfare schemes, and insert a provision making it mandatory to quote Aadhaar number while maintaining the voluntary nature in the parent Aadhaar Act.
Further, the court also held that the interim orders were passed in the petitions where Aadhaar scheme was floated as an executive/administrative measure. The court also opined that the said orders were not passed in a case where the court was dealing with a statute passed by the parliament. The unpleasant conclusion is that the court, by creating an artificial distinction between the executive and legislative actions of the government, validated the government’s blatant violation of Supreme Court orders. It must be kept in mind that under the constitution of India, the executive and legislative powers of the government are co-extensive and this has been reiterated by a constitution bench of the Supreme Court in the Ram Jawaya Kapur case (1955).
It remains unclear why the court did not provide any sound reasoning while holding that the parliament was competent to enact section 139AA in the IT Act. There cannot be an artificial distinction between interim orders passed in a challenge to an executive action and interim orders passed in a challenge to a legislation. This is fundamental to the integrity of the judiciary as an institution because all interim orders of the said nature are passed by the court while exercising its judicial powers as envisaged by the constitution of India. Any judgement of a court, whether interim or final, whether rendered in the context of a legislation, delegated legislation (rules/notifications) or even executive action, will continue to be binding on the parliament if the basis of those judgements is not removed. Nobody, not even the government, should be allowed to violate the orders of the Supreme Court; this is an indivisible part of constitutionalism which no ruling party ought to violate.
As much as this verdict is a victory for non-Aadhaar holders, it is indeed a bigger win for the government. The verdict gave the government necessary ammunition to link more welfare and non-welfare mechanisms with Aadhaar. It is disappointing to see that the Supreme Court is shying away from constituting a constitution bench to hear the larger issue of the right to privacy. This delay, coupled with a loosely worded judgement in the instant case, will be judged upon by the future generation in harsh words. Further delay will make it impossible for us to detangle ourselves from the Aadhaar web.
Note: The author assisted Arvind P. Datar, senior advocate, who represented the lead petitioner, Binoy Viswom, in the instant case.
Rahul Unnikrishnan is an advocate in the Madras high court.
(The author acknowledges the assistance of Varsha Chandrasekhar, a student of law.)