The Supreme Court, on Friday, questioned the maintainability of the petition filed by CPI Leader Binoy Viswam challenging the provisions of section 139AA of the Income Tax Act mandating linking of Aadhaar with PAN number and for filing income tax returns.
The petition was later withdrawn by the counsel appeared on behalf of the petitioner.
The top court said it had already upheld the validity of an Income Tax Act provision making Aadhaar mandatory for the allotment of permanent account number (PAN) and filing of tax returns in its judgment delivered in June this year.
“How this petition is maintainable now? We had upheld the vires (of the provision). Now, a judgement on right to privacy has come but there is no judgment on Aadhaar. How this petition has been filed?,” a bench comprising Justices A K Sikri and Ashok Bhushan asked.
The bench, however, granted the petitioner the liberty to file an application for intervention in the main Aadhaar matter which is scheduled to come up for hearing before a Constitution bench in the last week of this month.
Meanwhile, the apex court today also refused to hear a separate petition which had challenged the linking of Aadhaar with bank accounts. The court said it cannot hear several petitions raising similar issue and asked the petitioner to move an application for intervention in the main Aadhaar matter.
Advocate Sriram Parakkat, the counsel for the petitioner told to Taxscan that “It was an unpleasant surprise that the second writ petition titled Benoy Viswom v Union of India was not entertained. In its’ earlier judgment, it was specifically held that the challenge to Section 139 AA has only been examined in premise of violation of Articles 14 and 19 (1) g of the Constitution and the challenge under Article 21 largely depended on whether privacy was indeed a fundamental right or not. Under a changed circumstance, when a 9 Judge Bench of the Supreme Court categorically held that privacy was a fundamental right, it was legitimately expected that the part of the challenge to the provision under Article 21 for violation of the right to privacy would come alive.
Besides, as regards confirming of Section 139 AA on Articles 14 and 19 (1) g is concerned, a Five Judge Bench in Shaira Bhanu (the tripple talaaq judgement) had expressly overruled the decision in writ petition 247 ( Benoy Viswom v UOI). Whether this overruling is a Majority view or a Minority view in the Shaira Bhanu judgement is definitely an issue. But that also could have been adjudicated keeping the challenge to section 139 AA alive.”
“The resultant tragedy is that 139 AA remains in the statute books with hollow foundation stones laid down by the judgement in Benoy Viswom v Union of India which on the one hand has been expressly overruled by a 5 Judge Bench and on the other hand has left open the tested on Article 21 (which J Khanna famously said was the basic repository of all rights). What’s the meaning of the right to privacy when you are threatened with invalidation of PAN card and consequent civil death if you do not link pan with adhaar. The statute forces citizens to enrol for a scheme (Adhaar) which itself is to be tested by a Constitution Bench of the Supreme Court thereby rendering the Constitution Bench Judgement infructous through an Act of Parliament. And even the paragraph on partial stay in Benoy Viswom v UOI has to be re-worded in the post 9 Judge Bench scenario as it was supposed to operate only till the decision is arrived at by the 9 Judge Bench,” he added.
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