In Aadhaar-pan linkage, a gender lost
FUTURE TENSE Aadhaar recognises the third gender but PAN doesn’t. What’s at stake for the transgender community as the deadline to link the two nears?
New Delhi: Reshma Prasad’s latest identity crisis is not of her making. The 26-year-old Bihar-based transgender woman is in a quandary thanks to rules framed by the Indian state. Since the Finance Act (2017) made it mandatory to link the PAN card with the Aadhaar card — the deadline is now March 31, 2018 — she has been unable to do so. The reason is startlingly mundane: the Permanent Account Number (PAN) card application form, downloadable from the website of the income tax department does not, as yet, have a ‘third gender’ column. Prasad, therefore, cannot possess a PAN card that correctly identifies her gender. Prasad’s Aadhaar card identifies her as a transgender, but her existing PAN card reflects the gender assigned to her at birth, which was male. As a result of the mismatch, the two cannot be linked. To many, this may appear to be a technical error. But its implications are multiple and stand to impact many within the transgender population of the country, which according to the 2011 census, is around 488,000.
The Finance Act 2017 introduced a provision, Section 139AA to the Income Tax Act (1961), which made the linking of PAN with Aadhaar mandatory. The aim was to curb tax evasion, weed out multiple PANS, and track fraudulent financial transactions. Failure to comply with the deadline is expected to lead to the cancellation of PAN cards. It is also mandatory now, after a gazette notification of the Ministry of Finance issued last year, to provide the Aadhaar number while filing tax returns, except for those who do not have an Aadhaar card.
For the transgender community, identity is a fraught issue. Assigned a gender at birth that is at odds with their own selfidentity, transgender persons also face severe stigma.
Four years ago, the Supreme Court delivered the National Legal Services Authority (Nalsa) vs Union of India and Others judgment, which mandated that the state should ensure social, political, and economic inclusion and offer all manner of reparation to the transgender population starting with access to welfare schemes. It legalized a third gender identity, but also declared that self determination of identity — as man, woman, trans or third gender— was a cornerstone of fundamental rights guaranteed to them. Since then, various state governments have begun to set up transgender welfare boards. A government-aided college in West Bengal hired a principal who was a transgender woman; the Kochi metro hired transgender persons in different departments.
The central government introduced a Transgender (Protection of Rights) Bill 2016, which is expected to be tabled in the budget session that resumes on March 5. The Aadhaar card introduced a third gender option in its application form. The PAN card, however, still does not have the option of selecting gender beyond ‘male’ and ‘female’.
“When I accept myself as a transgender person, I want every identity card to reflect my gender correctly: from car papers to medical insurance card, to property documents to PAN card,” said Prasad, who is based in Patna. “When I am fighting for my transgender identity to be recognised, then why would I change my ID card to ‘female’ or use an ID card that says ‘male’?”
NO PAN, NO COMPANY
Not being able to file income tax returns as a transgender person is not Prasad’s only cause for worry right now.
Last year, the state government of Bihar updated its Bihar Startup Policy. The vision was “to enable Bihar emerge as the most preferred destination for Around the time that she sent a letter to the income tax department, she filed a public interest litigation in the Patna high court asking that they direct the Centre to introduce a third gender column in PAN card application forms, and update the online system of authenticating and linking the two identity cards. The court dismissed the petition stating that the matter of linking Aadhaar to various schemes was already pending before a Constitution bench in the Supreme Court, thus making it sub-judice. “They mistook my case as related to the one being heard in the Supreme Court, and dismissed it,” said Prasad.
The Supreme Court is currently hearing a clutch of 30 petitions that have been filed since 2012 challenging, among other things, the constitutionality of the Aadhaar Act 2016.
Last year, the apex court issued a partial stay on Section 139AA, which made it mandatory to link PAN card with Aadhaar, providing relief only to those who haven’t got an Aadhaar card. It upheld the mandatory linking of the identity cards for those who possessed both. “Our petition did not challenge the government notification to link PAN with Aadhaar,” explains Vikash Kumar Pankaj, the advocate who represented Prasad.
“We only asked that they direct the government to introduce a third gender column in PAN application forms. All government agencies are required to do this,” he said.
A silent IT department, a PIL that has been dismissed, an indifferent technical system, and a looming deadline: Prasad’s situation seems to appear bleaker by the day, but she is not giving up.
On Valentine’s Day, Prasad, along with a group of other transgender rights activists from around the country, met up at the office of the Human Rights Law Network (HRLN) in New Delhi’s Jangpura area. Several issues pertaining to their lives were discussed, of which 12 were starred — the HRLN plans to file petitions in the Supreme Court on all these matters, including a procedure to change gender identity that is based on dignity and mandating gender-neutral toilets.
Nabila Hasan, a lawyer with HRLN will file a special leave petition in the Supreme Court to argue Prasad’s case. “We are not challenging the Aadhaar card. We are simply saying that the correct gender of the person has to be put on the PAN card,” she said.