[Given the near universal coverage of the Aadhaar attained by now,
***almost*** everybody comes under that category.
Regardless of the concerns expressed as regards data leakage, in the
judgement itself, accompanied by some pious prescriptions.
Even if one just disregards, for the moment, all other legitimate concerns.
To sum up, it's yet another ***very bad*** judgement.
The reasons, in brief, are as under.
I. The extent of the problem of fake PAN cards has just not been
established, in absence of any reliable data. (To be fair, the
judgement, has referred to some figure - "11.35 lakhs (sic)",
suggesting a huge problem. Compare this with: "As recently as four
years ago, in 2013, the government told Lok Sabha that the total
number of fake PAN cards detected by authorities between 2009 and 2013
was only 509." Ref.: 'Why Duplicate PAN Cards Are Not as Big an Issue
as the Modi Government Claims' at
<
https://thewire.in/135148/ duplicate-pan-cards/>.)
The problem of data leakage has (at least implicitly) been acknowledged.
And, the overwhelming majority of Indian population have been coerced,
for whom cajolement just didn't work, by making the use of Aadhhaar
mandatory for an endless list of purposes.
Now, only a handful, other than the kids, are left out.
Yet, the judgement makes the linking of the two numbers mandatory,
practically, for all, with a very few exceptions.
II. "(T)he order of the Hon'ble Supreme Court dated 11.08.2015 as
modified by the Order of the Constitution Bench dated 15.10.2015,
emphatically mandates that the Aadhaar number will not be used by the
Respondents for any purpose other than the PDS Scheme, LPG
Distribution Scheme, 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), and that it would be voluntary."
(Source: <
http://www.kractivist.org/ military-pensions-linking- with-aadhaar-challenged/>.)
This judgement is a clear violation of the above while this two-judge
bench has no authority to do so.
Sukla]
https://scroll.in/article/ 840205/do-you-need-to-link- pan-and-aadhaar-breaking-down- the-supreme-courts-order IDENTITY PROJECT
Do you need to link PAN and Aadhaar? Breaking down the Supreme Court's order
Those who have Aadhaar must quote it in their tax returns, but those
without have a window where they need not get UID.
Yesterday · 10:11 pm
Rohan Venkataramakrishnan
The Supreme Court on Friday passed an order clarifying the
government's rules mandating the use of Aadhaar for the filing of
income tax returns. The rules had made it mandatory for all Indian
residents to link their Aadhaar, a 12-digit unique identity number
that is otherwise voluntary, to their PAN card, which is necessary for
taxation and banking transactions. Anyone who refused to do so was at
risk of having their PAN card declared invalid. Petitioners had
challenged the rules saying they were discriminatory, draconian and
unconstitutional, especially when the Supreme Court is also hearing
another matter challenging the Aadhaar project on questions of
privacy.
The court's decisions clarified a number of things, making Aadhaar-PAN
linking for those who already have UID, while leaving a window open
for those without Aadhaar. Below is a rundown of what the order means.
Those who have Aadhaar and want to file income tax returns, must link
the two by July 1, 2017.
If they do not link their Aadhaar number before filing income tax
returns, they risk having their PAN card be declared invalid.
This provision will only apply prospectively, which is to say from
July 1, 2017, and will not affect income tax returns filed for
previous years.
The PAN will also only be declared invalid from that date, and not "as
if the person had not applied for it", as the provision had mentioned.
Those who do not have Aadhaar cannot be forced to get it in order to
file income tax returns, at least until the Constitution Bench hears
the privacy case regarding UID.
But the court also suggested that Parliament consider another
punishment for those filing I-T returns without quoting Aadhaar, which
is "toned down" from the current one, where the PAN card may be
declared invalid.
The full judgment gets into a number of questions that will affect the
way Aadhaar can be used by the government.
Can Aadhaar be mandatory for some and voluntary for others?
The petitioners in the case argued that the original spread of Aadhaar
was done under the presumption that it was voluntary. The Supreme
Court has also made it clear, in previous orders, that Aadhaar is to
be voluntary except for a limited set of public welfare schemes, and
even in those the government has to provide an alternative if people
do not have Aadhaar. The Aadhaar Act, passed last year, also says that
enrolling for it is voluntary. Yet, the government has repeatedly
attempted to make it mandatory for many other programs and, the
petitioners argued that the most egregious was this provision
requiring Aadhaar for I-T returns.
The court, however, said that though Aadhaar may have been voluntary
for welfare schemes and other benefits, Parliament has the authority
to make it mandatory as well – even if the Aadhaar Act calls it
voluntary.
"It is the prerogative of the Parliament to make a particular
provision directory in one statute and mandatory/compulsory in other,"
the order said. "Aadhaar Act and the law contained in Section 139AA of
the Income Tax Act deal with two different situations and operate in
different fields."
Beyond I-T returns, this conclusion makes it easier for the government
to pass any number of laws making Aadhaar mandatory for other
services, even as its constitutionality is being challenged in the
Supreme Court.
Does the rule illegally discriminate between those with and without Aadhaar?
The petitioners argued that the law treats individuals unequally, by
providing one set of rules for those who have Aadhaar and have linked
it and a different set of rules for others.
Arvind Datar, the lawyer arguing for the petitioners, pointed out that
making PAN-Aadhaar linking mandatory with the stated aim of curbing
black money would not be valid, since it only affects individuals with
PANs and not companies that also do transactions and have PANs. Shyam
Divan, another lawyer for the petitioners, said the rules do not
properly account for those who do not want to enrol for Aadhaar, for
various reasons.
The court dismissed Datar's argument, saying that just because it did
not apply to all PANs did not make it discriminatory. Cutting down on
bogus PAN cards at the individual level was itself enough of an aim.
On Divan's argument too, the court said people could not simply choose
not to follow a law and then say it is discriminating against them.
"When a law is made, all those who are covered by that law are
supposed to follow the same. No doubt, it is the right of a citizen to
approach the Court and question the constitutional validity of a
particular law enacted by the Legislature. However, merely because a
section of persons opposes the law, would not mean that it has become
a separate class by itself," the court said. "If such a proposition is
accepted, every legislation would be prone to challenge on the ground
of discrimination."
Again, the court looked at the question on technical grounds without
considering why some might have chose not to get Aadhaar – because of
questions about its very constitutionality. Instead, the court said
the government is empowered to treat all tax assessees as one class,
and make laws covering them.
Does the punishment of invalidating PAN violate the Constitution?
The constitution gives every Indian the fundamental right to practise
any profession they wish to. The petitioners argued that, by
threatening to invalidate the PAN card for anyone who does not link it
to Aadhaar, the government was violating this fundamental right. PAN
is not just used for income tax returns, it is also necessary for
operating bank accounts above a certain limit, to use debit and credit
cards and a number of other services connected to banking.
The court agreed that invalidating the PAN card could potentially be
violative of Article 19(1)(g) of the Constitution, which protects the
right to any occupation or trade. But it also pointed out that the
stated objective of the linking is a reasonable one – to cut down on
black money by eliminating bogus PAN cards, which is a duty of the
government.
So the court concluded that it was reasonable to require PAN-Aadhaar
linking, but only for those who already have Aadhaar or have enrolled
for it. It however acknowledged that there is a constitutional
challenge regarding privacy, which the Supreme Court is yet to hear,
and so put a partial stay on this punishment, saying it would not
apply to those without Aadhaar.
"Those who have already enrolled themselves under Aadhaar scheme
would comply with the requirement of sub-section (2) of Section 139AA
of the Act... Those assessees who are not Aadhaar card holders and do
not comply with the provision of Section 139(2), their PAN cards be
not treated as invalid for the time being," the court said.
It did however, suggest that Parliament can still think up
consequences for those who have not linked Aadhaar to the PAN card by
"toning down" the effects, basically telling the government it needs
to use a punishment that is not so harsh as to declared the PAN card
invalid.
Does Aadhaar violate privacy?
The court did not get into this question at all, saying that an
earlier bench had already referred the matter to a Constitution Bench,
which has not yet been constituted. Whenever that bench sits to hear
the case, Aadhaar will be examined on the fundamental question of
whether the project violates a right to privacy, and indeed, whether
the Constitution guarantees privacy at all.
--
Peace Is Doable
