Aadhaar-PAN Linkage: Binoy Viswam Challenges S.139AA Of IT Act Again In The Light Of Triple Talaq, Privacy Judgments

CPI leader Binoy Viswam has approached the Supreme Court seeking re-consideration of two Judge Bench Judgment in Binoy Viswam Vs Union of India in which the Court upheld the constitutional validity of Section 139AA of Income Tax Act which made mandatory linkage of IT returns with Aadhaar.

While upholding the Section, the two Judge Bench of Justice AK Sikri and Ashok Bhushan in its June-9 Judgment observed as follows;

“The validity of the provision upheld in the aforesaid manner is subject to passing the muster of Article 21 of the Constitution, which is the issue before the Constitution Bench in Writ Petition (Civil) No. 494 of 2012 and other connected matters. Till then, there shall remain a partial stay on the operation of the proviso to sub-section (2) of Section 139-AA of the Act, as described above”.

Citing the Judgment of Justice RF Nariman, Mr. Viswam submits that the Constitution Bench in the Triple Talaq Judgment over-ruled the aforesaid decision in Binoy Vishwam’s case as being per incuriam.

Justice Nariman, in his Judgment, observed as follows;

However, in State of Bihar v. Bihar Distillery Ltd. [State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at para 22, in State of M.P. v. Rakesh Kohli[State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481] , SCC at paras 17 to 19, in Rajbala v. State of Haryana [Rajbala v. State of Haryana, (2016) 2 SCC 445] , SCC at paras 53 to 65 and in Binoy Viswam v. Union of India [Binoy Viswam v. Union of India, (2017) 7 SCC 59] , SCC at paras 80 to 82, McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] was read as being an absolute bar to the use of “arbitrariness” as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] are, therefore, no longer good law.”

Thereafter, a nine-Judge Bench in Justice K.S. Puttasamy v. Union of India unanimously held that the right to privacy is a fundamental right and inherent to Article 21 of the Constitution of India.

The Petitioner submits that the impugned provision that seeks to link PAN cards to Aadhaar cards is  grossly disproportionate to the object it seeks to achieve. It is submitted that the decision in Binoy Vishwam’s case merely dealt with the question of proportionality in the context of Article 19(1)(g) of the Constitution of India, and therefore, in view of the decision of the 9 Judge Bench in Privacy Case, the proportionality of the impugned provision must be examined in the context of the right to privacy. Merely unsubstantiated allegations of misuse of PAN card citing the ubiquitous malice like black money, funding of terrorism etc. cannot be a justification to coerce the individuals to part with their bio metric information.

“In view of the aforesaid developments inasmuch as the over-ruling of the decision in Binoy Vishwam’s case by the Constitution Bench in Shayaro Bano’s decision, and finally, the decision of the nine-Judge Bench in Puttuswamy’s case holding that right to privacy is fundamental right, the Petitioner is constrained to prefer the present writ petition under Article 32 of the Constitution of India before this Hon’ble Court praying, inter alia, that S. 139-AA of the Income Tax Act, 1961 be struck down as being in violation of Articles 14 and 21 of the Constitution of India”, says the Petition.