Case BriefsSupreme Court

Supreme Court: The bench of Dr. A.K. Sikri and Ashok Bhushan, JJ, upholding the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory, said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. The bench also said that Section 139AA is also not violative of Article 19(1)(g) of the Constitution insofar as it mandates giving of Aadhaar enrollment number for applying PAN cards in the income tax returns or notified Aadhaar enrollment number to the designated authorities.

Rejecting the contention that since enrollment under Aadhaar Act, 2016 is voluntary, it cannot be compulsory under the Income Tax Act, the Court said that in order to curb blackmoney, money laundering and tax evasion etc., if the Parliament chooses to make the provision mandatory under the Income Tax Act, the competence of the Parliament cannot be questioned on the ground that it is impermissible only because under Aadhaar Act, the provision is directory in nature. The Court also noticed that one of the main objectives of Aadhaar-PAN linkage is to de-duplicate PAN cards and to bring a situation where one person is not having more than one PAN card or a person is not able to get PAN cards in assumed/fictitious names and it is the prerogative of the Legislature to make penal provisions for violation of any law made by it.

The Court, however, clarified that the validity of the provision is upheld subject to the decision of the Constitution bench where the issue relating to Right to Privacy and data leakage due to Aadhaar-PAN linkage is under consideration. The Court said that till the said issue is decided there will be a partial stay on the operation of proviso to sub-section (2) of Section 139AA of the Act, that says that the PAN allotted to the person will be deemed to be invalid in case of failure to intimate the Aadhaar number.

Stating that the proviso to Section 139AA(2) cannot be read retrospectively, the Court said that if failure to intimate the Aadhaar number renders PAN void ab initio with the deeming provision that the PAN allotted would be invalid as if the person had not applied for allotment of PAN would have rippling effect of unsettling settled rights of the parties. It has the effect of undoing all the acts done by a person on the basis of such a PAN. It may have even the effect of incurring other penal consequences under the Act for earlier period on the ground that there was no PAN registration by a particular assessee. The Court also said that the Parliament may consider as to whether there is a need to tone down the effect of the said proviso by limiting the consequences.

As per the order of the Court, those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. [Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, decided on 09.06.2017]

 

Case BriefsSupreme Court

Supreme Court: The 5-Judge Bench of Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ listed the matter relating to Whatsapp data sharing with it’s parent company Facebook on 27.04.2017.

Harish Salve, appearing for the petitioners had argued that the policy that is formulated by WhatsApp is unconscionable and is unacceptable and also suffers from constitutional vulnerability since it maladroitedly affects the freedom which is a cherished right of an individual under the Constitution. Mukul Rohatgi, the Attorney General for India has submitted that there is going to be a regulatory regime to save the data base to guide the concept of net-neutrality.

On the other hand, Kapil Sibal, appearing for Whatsapp, argued that WhatsApp does not share data protection of voice and messages, so no part of the content which is exchanged between two individuals is ever revealed to third party and that their action is compliant with Section 79 of the Information Technology Act, 2000.

It was argued by Kapil Sibal that the matter could not have been referred to the Constitution Bench without framing the questions that needed to be referred. Harish Salve, resisted the argument by stating that the foundation that the direction for listing the matter before a five-Judge Bench need not be treated as a reference as postulated under Article 145 of the Constitution of India. He said that the Chief Justice of India is the master of the roster and he has the authority on the administrative side to place the matter before a five-Judge Bench regard being had to the gravity, significance and importance of the matter. The Court, however, said that it will look into this preliminary objection at the time of delivery of the final verdict. [Karmanya Singh Sareen v. Union of India, 2017 SCC OnLine SC 434, order dated 18.04.2017]

Case BriefsHigh Courts

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ. held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act. The Court held that “Privacy is a fundamental human right. So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy.”

In the present case, an appeal was filled by the appellant husband whose petition for dissolution of marriage under Section 13(1)(ia) was dismissed by the Family Court of Rohini, Delhi. The petition was filed on the ground of cruelty alleging that the respondent wife was pressurising him to set up a separate home as she did not want to live in a joint family which the respondent husband couldn’t afford since he worked as a labourer. Other allegations were that she was not dispensing her duties as a wife, demanded a separate household for herself, abused him verbally and physically and even abandoned him for no reason.

The wife by disapproving all these allegations stated that it was the husband who had been cruel towards her and not her. She alleged that her husband had demanded for a dowry of Rs.1 lakh to buy a motorbike and as her family couldn’t afford it, she was ousted from her matrimonial home and was never allowed to return. She also mentioned that the husband had taken up a separate accommodation from his family members after marriage where he resided with her and their child for two-three days and then abandoned them and never returned.

The Court rejected the petition of the appellant husband and said that Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife. The Court stated that the evidence clearly disproves the appellant’s contention that the respondent left her matrimonial home and never returned. The Court reaffirmed the findings of the Family Court that the respondent had no intention to desert her husband and there was no evidential backing to support that the appellant or his family members had provided requisite privacy to the respondent thus, holding that privacy demand was not unreasonable and as such did not constitute cruelty. Further, the allegation that the behaviour of the respondent caused mental cruelty was also disapproved.

It is pertinent to note that the counsel for appellant asserted that there is no life in the marriage bond and that it should be dissolved for this reason. Counsel relied on K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226  in which it was held that “A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing.”

The Court relied on Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379 to hold that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act and on  Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 to hold that the doctrine of irretrievable break-down of marriage is not available to the High Courts, lacking powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.

The Court based on its reasoning finally held that the Family Court was correct in holding that such demand of separate room was not unreasonable and as such did not constitute cruelty and also dismissed the husband’s petition. [Mini Appa Kanda Swami v. M. Indra, 2016 SCC OnLine Del 5312, decided on September 21, 2016]

 

Case BriefsHigh Courts

Patna High Court: Stating that the punishments imposed in respect of the Liquor ban in the State of Bihar by way of the amendment to the Bihar Excise Act, 1915 are quite unreasonable and draconian and cannot be justified in a civilized society, the bench of Iqbal Ahmed Ansari, CJ and Navaniti Prasad Singh, J quashed the law imposing liquor ban in the State of Bihar.

The Court noticed that the punishment for any offence has been prescribed as not less than 10 years, which may extend to imprisonment for life and with fine, which shall not be less than Rs. one lakh, but may extend to Rs. 10 lakhs and that it totally takes away the discretion of the Court to give a lesser sentence depending upon the mitigating circumstances.  Explaining it by way of an example the Court said that if a humble rickshaw-puller found with only a bottle or a pouch of country liquor would, now, be exposed to minimum of 10 years of imprisonment with a fine of Rs. one lakh, an amount, which he had ever never possessed or seen.

On the question that whether the right to drink alcohol is a fundamental right, the bench gave different views. Navaniti Prasad Singh, J was of the opinion that State cannot dictate what a personwill eat and what he will drink and that right to drink alcohol, like a responsible citizen, is a part of right to privacy included under Article 21 of the Constitution. He said that a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well. If the State starts dictating a citizen what to drink or what not to drink, though the same is not per se injurious to health, it would be a direct intrusion on personal liberty affecting meaningful life. It would be violation of personal liberty guaranteed by the Constitution.

Iqbal Ahmed Ansari, CJ, however, disagreed and held that when the Legislature of a State makes the Directive Principles applicable in the governance of the State, one cannot be heard to complain that the Directive Principles are violating the fundamental rights. Had the Directive Principles been violating fundamental rights, the Directive Principles could not have been made, and would not have been incorporated, in our Constitution by the Constitution-makers as fundamental principles of governance of the States. He added that though what one will eat or what one will drink is his decision, the fact remains that when the Directive Principles of State Policy requires the State to make endeavour to bring about prohibition, it logically follows that merely because the State is making the endeavour to bring about prohibition, one cannot claim that he has a fundamental and indefeasible right to continue to consume liquor or alcohol or intoxicating drinks or intoxicating drugs. When the right to consume intoxicating drink cannot be claimed as a fundamental right, an intrusion into this right, if, otherwise, legally valid, cannot be resisted by saying that it is one’s right to privacy, which is infringed or violated. If the right to consume intoxicating drink is held to be a fundamental right, one would be justified in saying that this right cannot be taken away or infringed by imposing total prohibition. [Confederation of Indian Alcoholic Beverage Companies v. State of Bihar, 2016 SCC OnLine Pat 4806, decided on 30.09.2016]