Aadhaar Judgement: 5th Review Petition Filed in the Supreme Court

Imtiyaz Ali Palsaniya became the fifth petitioner to file a review petition in the Supreme Court against the 26 September 2018 judgement of the constitution bench. In his review petition, Mr Palsaniya has challenged the controversial Section 139AA of the Income-tax Act, which made mandatory linking of Aadhaar with permanent account number (PAN).

Earlier four petitioners, Jairam Ramesh, Beghar Foundation, MG Devasahayam and Bengaluru-based Col (Retd) Mathew Thomas of Citizens' Action Forum, have filed review petitions against the Supreme Court judgement on Aadhaar.

On 26 September 2018, the Bench of Chief Justice Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan delivered their judgement on the much awaited issue of Aadhaar.

Upholding Section 139AA of Income-Tax Act, the Bench said, it is mandatory quoting of Aadhaar or enrolment ID of Aadhaar application form, for filing of I-T returns and for making an application for allotment of a PAN number. (Read: Supreme Court Upholds Aadhaar; Says Private Entities, Including Banks, Mobile Operators Cannot Demand Aadhaar https://www.moneylife.in/article/supreme-court-upholds-aadhaar-says-private-entities-including-banks-mobile-operators-cannot-demand-aadhaar/55398.html

In his review petition made available by TheLeafLet,in , Mr Palsaniya had contended that various grounds urged in interim petitions for directions were not considered by the bench while passing the judgement.

"The judgment sought to be reviewed has also not considered a crucial aspect of PAN - Aadhaar linkage, since it fails to satisfy the test laid down by the same Court in the very same judgment. The test laid down was that the thing for which Aadhaar sought by the State had to necessarily fall within the meaning of either a 'benefit', 'subsidy' or 'service'. Thus, anything for which Aadhaar had to be required, had to first pass the muster of qualifying within the meaning of a 'benefit', 'subsidy' or 'service'. Filing of income tax returns (ITR) under Section 139AA of the Income-tax Act, 1961 does not fall within either of the three descriptions, since filing of income tax is a statutory mandate, the violation of which could result in serious penalty. It is neither a benefit, subsidy or service," he stated.

The review petition also talks about lack of explicit directions from the apex court for deletion of Aadhaar data by private and other entities that are not allowed to use the UID.

It says, "The judgment prayed to be reviewed has not considered another consequential direction, which ought to have been issued pursuant to reading down of Section 57 of the Aadhaar Act, 2016. If private entities were prohibited from storing or collecting or otherwise using sensitive personal data, then a necessary sequitur would have to be a consequential direction for the deletion of every such Aadhaar data, which already is in possession of the private companies, entities, schools, colleges, work places, banks, post offices, telecommunication service providers etc. The impugned judgment has not given any such direction to these various private players or corporate bodies to delete such a data. A consequence of this omission is that all these private players continue to retain the sensitive personal data of the citizens of this country."

Mr Palsaniya also contended that in the judgement the apex court has not considered the crucial distinction between a 'citizen' and a 'resident' since UIDAI enrols any resident for Aadhaar. After enactment of the Aadhaar Act, UIDAI had admitted that 1 billion individuals enrolled in the Aadhaar programme.

"There is no way to identify the citizens from residents who are not citizens, as Aadhaar has been the singular tool to dilute the said distinction. Needless to say, all the benefits, subsidies or services that are solely the rights of the citizen, are being given away to residents, who are not citizens. The impugned judgement only dismisses this pertinent claim by holding that this may arise in some probable future, and appropriate steps may be taken by UIDAI as and when the situation arises.

"However, there is clear and convincing evidence to suggest to the contrary that as on 26 March 2016, 1 billion individuals had already been enrolled into the Aadhaar programme and there is no way to ascertain how many of these individuals are citizens, and how many are residents," he contended.

According to Mr Palsaniya, the apex court's 26th September judgement has not considered that the objective and purpose of the Aadhaar programme is not to provide benefits, subsidy or services, but to 'create one national identity for every resident', which makes the grant of benefits, subsidies or services, contingent upon this unique identity. He says, "The judgment under review does not carve out a distinction between these two conflicting objectives, rather accords primacy to only the former."

Earlier, Congress leader Jairam Ramesh had filed a writ petition challenging Aadhaar Bill as a money Bill. He had said, "It is important because declaring the Aadhaar bill as money bill violates Article 110 of the Constitution and has grave implications for the future of the Rajya Sabha itself."

However, the five-judge Bench of Supreme Court, in a majority decision, upheld the passing of Aadhaar Bill as money Bill.