THE UNWHOLESOME AADHAAR: The conundrum of Sec. 139AA of the I. T. Act ( by Shiva Kant Jha, Advocate) 5 POINTS WHICH SHOULD NOT BE MISSED

1.The Income-tax Act had been legislated as a Money Bill, and enacted as law in terms of Art. 265 of the Constitutution.  [The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (18 of 2016) has its specified purpose, and is neither a Money Bill, nor an enactment under the discipline of Art. 265 of our Const.\

2.The tax under a statute framed under Art 265 must conform to the tax law discipline, and it must not transgress Constitutional restraints as judicially interpreted and evolved. Section 139AA of the Income-tax Act yokes arbitrarily two distinct legal provisions made for different purposes together. PAN and Aadhaar number were conceived for distinct purposes. Not to see what is obvious may not be fair. We all hear that to woo the foreign investors our tax-law deserves to be stable. But when it is ordinary Indian citizens Section 139AA contemplates almost an anarchy!

  1. The extraction of all sorts of biological, social, and personal data from the free citizens under the requirements of the Aadhaar cards, even when a citizen is under no bondage to earn anything which can ever be considered a chargeable event under the Income-tax Act, would be grossly unreasonable and arbitrary. Validity of such provisions require examination first in the context of the Income-tax Act, then in the context of the constitutional restraints, but all viewed under the footlight of the values of a democratic society for building which “We the People “ have established our democracy under the discipline of our laws and values which give content to our Constitution.
  2. The requirements under Section 139AA of the Income-tax Act, 1961, are irrelevant. Once there is taxable event, the right to get tax thereon in accordance with law gets vested in the Government (can be called the person of inherence). Corresponding duty to pay tax at the prescribed rate is cast on the tax payers (can be considered the persons of incidence. In a situation of this sort, the core provisions Act, 2016 (18 of 2016), esp. the Objectives as enacted, are wholly irrelevant and extraneous[1].

5  It is submitted that we stand at a cross-road requiring an insightful decision that may have effect subversive to our democracy and cultural values which, when all is said, remain to save us from turning into a society of slaves. All the criss-cross,  even in the  blood drops wherein all genetic information remain housed, or finger print, Iris scan, or such other biological attributes can be  mapped to be stored somewhere exposing the citizens to the risk of morbid  manipulation  for purposes which right now no human being can foresee. Our judiciary would  consider the reach of “biometric information”, “core biometric information”, “demographic information” not only to see their relevance to the filing of the Income-tax Returns, but also to measure the risk that our society is exposed to. We should mark that  the definition of “demographic information” is inclusive that provides deliberately battered  frontiers on extension of its import. Besides, before taking such decision, our Government should have got the issues  examined by experts, with no axe to grind, the appropriateness of such study when a drop of blood can present baffling problems. In order to teach humility even to our experts this layman would quote two short extracts from Cambridge Minds, edited by Richard Mason:

“All the information which specifies us, the information which specifies a human being, is laid down in 46 chromosomes, which together contain a length of DNA of about I metre. This one meter contains about 3 billion bases, the equivalent of a library of about 5,000 volumes, all packed together into a single cell. Because the DNA is of atomic dimensions, that information is packed so tightly that it can fit into a single sperm or a single egg.”( page 200)

“I have not yet told you why I worked on haemoglobin, and what it does. It is the protein of the red blood cell. It carries oxygen from the lungs to the tissues and helps the return transport of carbon dioxide to the lungs. It is a protein that evolved at the same time as large animals, because without this oxygen-transport molecule, the life of the higher animals would not be possible. So it’s a crucial protein. If you are anaemic you are short of haemoglobin, you don’t get enough oxygen and feel weak. There are 250,000,000 red cells in one small drop of blood, and inside every red cell there’s the same number – about 250,000,000 – of haemoglobin molecules. Haemoglobin contains four atoms of iron embedded in a dye – a pigment – called haem; this is what makes blood red. The four haems in the haemoglobin molecule are arranged in separate pockets on its surface.” (page 202)

We know that “biometric information”, “core biometric information”, “demographic information” are mapped in many countries but not with right results. To cast this duty on the ordinary Indians is alarming. They are to be saved from all possible traps. They should not be left to be exploited by the so-called experts. The experts have many concealed agenda. Art of concealment delights  the experts most, it also  delights government quite often. Harold Pinter, the winner of the Nobel Prize for Literature, 2005, very perceptively said:

“Political language, as used by politicians, does not venture into any of this territory since the majority of politicians, on the evidence available to us, are interested not in truth but in power and in the maintenance of that power. To maintain that power it is essential that people remain in ignorance, that they live in ignorance of the truth, even the truth of their own lives. What surrounds us therefore is a vast tapestry of

lies, upon which we feed.”


In fine:

We are optimists, we are even incorrigible optimists.  We believe Justice would surely be done some day.

In this context two comments are worth consideration, one by Thomas Balogh said in The Irrelevance of Conventional Economics: ”The modern history of economic theory is a tale of evasions of reality.”; and the other byProf. John Kenneth Galbraith in his A Short History of Economics:The Past as the Present (at p. 236):

                          “Here another great constant in economic life: as between grave ultimate disaster and conserving reforms that might avoid it, the former is frequently preferred.”

Drawn up by

Shiva Kant Jha, Advocate

Mob. 9811194697


[1] “An Act to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto.”

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