CPI leader Binoy Viswam has approached the Supreme Court, assailing Section 139AA of Income Tax Act which makes Aadhaar mandatory for filing Income Tax Returns..In the petition drawn and filed by Advocate Sriram Parakkat, Viswam has prayed for striking down the impugned provision for being violative of Articles 14 and 21..What is interesting is that this is the second time Viswam is approaching the Supreme Court challenging the aforesaid provision. He had moved the Court earlier this year challenging the same..The Court in that petition, while upholding the validity of the provision on the touchstone of Articles 14 and 19 of the Constitution, had left the question of validity of the same in relation of Article 21, to be decided after the judgment of the nine-judge bench in the Privacy case..Hence, Viswam in this second petition, has placed heavy reliance on the two Supreme Court judgments which were rendered after the judgment in his first petition – Triple Talaq and Right to Privacy case..Viswam has contended that the judgment in his first petition has been expressly overruled by the Supreme Court in Shayara Bano v. Union of India (Triple Talaq judgment) on the aspect of arbitrariness as a ground to challenge a legislation enacted by the Parliament..“…a Constitution Bench of this Hon’ble Court in Shayara Bano v. Union of India reported in (2017) 9 SCC 1, expressly held that a statute may be challenged on the ground of arbitrariness and expressly over-ruled the aforesaid decision in Binoy Viswam’s case.”.He has, therefore, contended that he is re-agitating the issue in relation to arbitrariness in view of the express overruling of the earlier judgment..“The Petitioner seeks to reagitate the issue in relation to the arbitrariness of the impunged section and it being in violation of Article 14 of the Constitution of India, in view of the express over-ruling by the Constitution Bench in Shayara Bano’s case (cited supra) of the decision in Binoy Vishwam’s case on the issue of arbitrariness.”.Viswam has then proceeded to place heavy reliance on the Right to Privacy judgment..“…this Hon’ble Court has answered the reference as to whether the right to privacy is a fundamental right in the affirmative in the decision of the 9-Judge Bench in Justice K.S. Puttuswamy v. Union of India...139AA of the Income Tax Act, 1961 recognized restrictions on the right to privacy on very limited gronds. The impugned provision falls foul of fundamental requirement of reasonableness mandated by Article 14 of the Constitution of India inasmuch as the same is arbitrary in nature. Furthermore, in view of an absolute lack of legitimate state aim in the instant case to replace the PAN regime with the Aadhar regime, the impugned provision fails to satisfy the exceptions carved out by this Hon’ble Court in Puttuswamy’s case.”.Viswam has also contended that the impugned provision fails to satisfy the test of proportionality in the light of the 9-judge Bench decision in Right to Privacy case..“this Hon’ble Court has held that a law that infringes on the right to privacy must satisfy the test of proportionality. It is submitted that the impugned provision that seeks to link PAN cards to Aadhar cards is grossly disproportionate to the object it seeks to achieve. It is submitted that the decision in Binoy Vishwam’s case (cited supra) merely dealt with the quesiton 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 decision of this Hon’ble Court, 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 ubiquitious malice like black money, funding of terrorism etc. cannot be a justification to coerce the individuals to part with their biometric information.”.Further, Viswam has also placed reliance on the Aadhaar Act and various interim orders of the Supreme Court to contend that Aadhaar cannot be made mandatory..He has, therefore, prayed for striking down the provision as unconstitutional, illegal and arbitrary and in violation of Articles 14 and 21 of the Constitution..Click here to download the Bar & Bench Android App
