BINOY VISWAM v. UNION OF INDIA & ORS.

46 SUPREME COURT REPORTS [2017] 7 S.C.R.

A thereby meeting the test ofArticle 14, the impugned law clearly fails on· clauses (iii) (narrow tailoring) and (iv) (balancing) of the proportionality test of the above decision. He submitted that the State has failed entirely to show that the cancellation of PAN Cards as a consequence of not enrolling for Aadhaar with its accompanying draconian consequences for the economic life of an individual is narrowly tailored to achieving its B goal of tax compliance. It is also submitted that in accordance with the arguments advanced above, the State's own data shows that the problem of duplicate PANs was minuscule, and the gap between the tax payer base and the PAN Card holding population can be explained by plausible factors other than duplicates and forgeries. ·He questioned the wisdom c oflegislature in compelling 99 .6% of the taxpaying citizenry to enroll for Aadhaar (with the further prospect of seeding) in order to weed out the 0.4% of duplicate PAN Cards, as it fails the proportionality test entirely.

32Copy pinpoint32. On the principle ofproportionality, he submitted that this principle was applied in the R.K. Dalmia 8 case as per the following passage: D "11 ... (d) that the Legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;

E (e) that in order to sustain the presumption of cons.titutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time oflegislation; ... ".

33Copy pinpoint33. Basic premise of the submissions ofMr. Shyam.Divan, learned senior advocate, was also the same as projected by Mr. Datar. He insisted that Section 139AA of the Act, which had made Aadhaar mandatory for income-tax assessees, is unconstitutional. However, in his endeavour to plead that the provision be declared unconstitutional, he approached the subject from an altogether different premise, giving another perception to the whole issue. His basic submission was that every individual or citizen in this country had complete control over his/ her body and State cannot insist any person from giving his/her finger tips or iris of eyes, as a condition precedent to enjoy certain rights. He pointed out that all the petitioners in his writ petition were holding PAN 8 Footnote 6 above H

BINOY VISWAM v. UNION OF INDIA & ORS. 47 [A. K. SIKRI, J.]

Cards and were income-tax assessees but had not enrolled under Aadhaar A Scheme. They were the consentions persons in the society and did not want to give away their finger tips or iris, being consentions objectors, that too, to private persons who were engaged as contractors/private enrollers by the Government for undertaking the job of enrolment under the Aadhaar. It was submitted that the data given to such persons were not safe and there was huge possibility that the same may be leaked. Further, requirement of giving Aadhaar number for every transaction amounted to Surveillance by the State and the entire profile of such persons would be available to the State. He also pointed out that with today's technology, there was every possibility of copying the fingerprint and even the iris images. Various cases of fake Aadhaar Card had come to light and even as per the Government's statement, 3.48 lakh bogus Aadhaar Cards were cancelled. There were instances of Aadhaar leak as well. Even hacking was possible. He conceded that these were the issues within the realm of'Right to Privacy' which were to be decided by the Constitution Bench. However, according to him, various orders passed by this Court in those petitions clearly reflect that the Court had given the directions that Aadhaar Scheme had to be voluntarily; there would not be any illegal implants; and no one would suffer any consequences ifhe does not enroll himself under the Aadhaar Scheme. He also submitted that even the Aadhaar Act was voluntary in nature which creates rights for citizens and not obligations. According to him, E Aadhaar Act envisages free consent for getting certain benefits under social welfare schemes of the Government. On the other hand, Section 139AA of the Act is compulsory and coercive. Pointing out that ifAadhaar number is not mentioned in the income-tax returns, the effect provided under Section 139AA of the Act is that the PAN Card held by such a F person would itself become invalid and inoperative which will lead to various adverse consequences inasmuch as for many other purposes as well, PAN Card is used. He referred to Sections 206AA, I 96J, 27 IF and 272B of the Act and Rule 114B of the Rules to demonstrate this. He also referred to the provisions of Identification of Prisoners Act, 1920 which require a prisoner to give his fingerprints for record and G . submitted that making Aadhaar compulsory amounted to treating every person at par with a prisoner.

34Copy pinpoint34. On the aforesaid premise, Mr. Divan articulated his legal submissions as under: H

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A (i) Section 139AAoftheAct is contrary to the concept of'limited Government'. (ii) The impugned provision coerces the individuals to part with their private information which was a part of human dignity and, thus, the said provision was violative ofArticle 21 of the Constitution· B as it offended human dignity. (iii) The impugned provision creates the involvement which can be used for surveillance. (iv) This provision converts right under Aadhaar Act to duty under the Income Tax Act. c

35Copy pinpoint35. Elaborating on the argument predicated on the concept of 'Limited Government', Mr. Divan submitted that the Constitution oflndia was the basic law or grundnorm which ensures democratic governance in this country. Though a sovereign country, its governance is controlled by the provisions of the Constitution which sets parameters within which three wings of the State, namely, Legislature, Executive and Judiciary has to function. Thus, no wing of the State can breach the limitations provided in the Constitution which employs an array of checks and balances to ensure open, accountable government where each wing of the State performs its actions for the benefit of the people and within its sphere of responsibility. The checks and balances are many and amongst them are the respective roles assigned by the Constitution to the legislature, the executive and the judiciary. Under India's federal structure, with a distribution oflegislative authority between the Union government and the States, the fields oflegislation and corresponding executive authority · are also distributed between the Union' and the States. Provisions in the F Constitution such as the fundamental rights chaptef (Part III) and the chapter relating to inter-state trade (Part XIII) also circumscribe the authority of the State. These limitations on the power of the State support the notion of'limited government'. In this sense, the expression 'limited government' would mean that each wing of the State is restricted by G provisions of the Constitution and other laws and is required to operate within its legitimate sphere. Exceeding these limits would render the action of the State ultra vires the Constitution or a particular Jaw. He further argued that the concept of'limited government' may also be understood in a much broader and different sense. This notion of a limited government is qua the citizenry as a whole. There are H

BINOY VISWAM v. UNION OF INDIA & ORS. 49 [A. K. SIKRI, J.]

certain things that the State simply cannot do, because the action A fundamentally alters the relationship between the citizens and the State. The wholesale collection of biometric data including finger prints and storing it at a central depository per se puts the State in an extremely dominant position in relation to the individual citizen. Biometric data belongs to the concerned individual and the State cannot collect or retain B .•it to be used against the individual or to his or her prejudice in the future. Further the State cannot put itself in a position where it can track an individual and engage in surveillance. The State cannot deprive or withhold the enjoyment ofrights and entitlements by an individual or makes such entitlements conditional on a citizen parting with her ·biometrics. Mr. Divan referred to the judgment of this Court in State of C Madhya Pradesh & Anr. v. Thakur Bharat Singh 9 where the concept oflimi ted government is highlighted in the following manner: "5 .... All executive action which operates to t~e prejudice of any person must have the authority oflaw to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists Jaws may be enacted, and exclusive action may be taken in pursuance of lawful authority, which ifthe provisions ofArticle 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (J) the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is a distribution of powers between the three organs of the State- legislative, executive and judicial - G each organ having some check direct or indirect on the other; and (3) the rule of law which includes judicial review of arbitrary executive action. As pointed out by Dicey in his Introduction to 'AIR 1967 SC 1170: (1967) 2 SCR 454 H

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A the study of the Law of the Constitution, 10th Ecln., at p. 202, the expression "rule oflaw" has three meanings, or may be regarded from three different points of view. "It means, in the first place, the absolute supremacy er predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority B on the part of the Government". At p. 188 bicey points out: . '"In alfh,ost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisol)ment, of expulsion from its territory, and the like, than is either legally cla\med or in fact c exerted by the Govetnment in England: and a study of European politics now and again reminds English readers that wherever there is di~retion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects." We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person must, be supported by some legislative authority."

36Copy pinpoint36. Relying on the aforesaid observations, Mr. Divan submitted that the recognition of the distinction between an individual or person and the State is the single most important factor that distinguishes a totalitarian State from one that respects individuals and recognizes their special identity ~nd entitlement to dignity. The Indian Constitution does not establish a totalitarian State but creates a State that is respectful of individual liberty and constitutionally guaranteed freedoms. The Constitution oflndia is not a charter of servitude.

37Copy pinpoint37. Proceeding further, another submission of Mr. Divan, as noted above, was that Section 139AA which coerces the in.dividuals to part with t~eirpersonal information was unconstitutional. He submitted that a citizen is ehtitled to enjoy all these rights 'including social and civil rights such as the right to receive an education, a scholarship, medical assistance, pensions. and benefits under government schemes without having to part with his or her personal biometrics. An individual's H

BINOY VISWAM v. UNION OF INDIA & ORS. 51 [A. K. SIKRI, J.]

biometrics such as finger prints and iris scan are the property ~nd entitlement of that individual and the State cannot co~rce an individual or direct him or her to part witlibiometrics as a condition for the ex'ercise of rigb.ts or the enjoyment of entitlements. Every citizen has a basic right to informational self-determinatioI) and the state cannot exercise dominion over a citizen's proprietary information either in individual cases or collectively so as to place itself in a position where it can aggregate information and create detailed profiles of individuals or facilitate this process. The Constitution of India is not a charter for a Police State which permits the State to maintain cradle to grave records of the citizenry. No democratic country in the world has devised a system similar to Aadhaar which operates like an electronic leash to tether every c citizen from cradle t-0 grave. There can be no question of free consent in situations where an individual is being coerced to part with its biometric information (a) to be eligible for welfare schemes of the State; and/or (b) under the threat of penal consequences. In other words, the State cannot compel a person to part with biometrics as a condition precedent D for discharge of the State's constitutional and statutory obligations. In · support of his submission that there cannot be coercive measures on the parf<.if the Government to part with such information ·and it has to be voluntary and based on informed consent, Mr. Divan refered to the followingjudgments: (i) National Legal Services Authority v. Union ofIndia & Ors. '0 E

'.'75. Article 21, as already indicated, guarantees the protection of"personal autonomy" ofan individual. In Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC l] (SCC p. 15, paras 34-35), this Court h.eld that personal autonomy i'ncludes both the negative right of not to be subject to interference by others F and the. positive right of individuals to make decisions about their life, to express themselves and to choose wb.ich activities tp take part in. Self-de.terminati~n of.gender is art integral part of personal autonomy and self-expressiop and falls within the realm of petsonal liberty guaranteed uncler Article 21 of the. G Constitutio~ otindia." · (ii) Suni/ Batra &°Anr. v, Delhi Administration & Ors. 11

'° (2014·) s sec 438 11 (1978) 4 sec 494 H

52 SUPREME COURT REPORTS [2017] 7 S.C.R.

BINOY VISWAM v. UNION OF INDIA & ORS. 53 [A. K. SIKRI, J.]

93. Rehnquist, C.J. noted that in law even touching of one A person by another without consent and without legal justification was a battery, and hence illegal. The notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. As observed by Cardozo, J. while on the Court of Appeals of New York: B "Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." c "Vide Schloendorff v. Society of New York Hospital [211 NY 125: 105NE92(1914)], NY at pp. 129-30, NEatp. 93. Thus the informed consent doctrine hl),s become firmly entrenched in American Tort Law. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment." D

38Copy pinpoint38. He, thus, submitted that the right to life covers and extends to a person's right to protect his or her body and identity from harm. The right to life extends to allowing a person to preserve and protect his or her finger prints and iris scan. The strongest and most secure manner of a person protecting this facet of his or her bodily integrity and identity is to retain and not part with finger prints/iris scan. He argued that the right to life under Article 21 permits every person to live life to the fullest and to enjoy freedoms guaranteed as fundamental rights, constitutional rights, statutory rights and common law rights. He also argued that the constitutional validity of a statutory provision must be judged by assessing the effect the impugned provision has on fundamental rights. The effect of the impugned provision is to coerce persons into parting with their finger prints and iris scan and lodging these personal and intimate aspects of an individual's identity with the State as part of a programme that is in the petitioner's view wholly illegitimate and the validity of which is pending before the Constitution Bench. G

39Copy pinpoint39. Expressing his grave fear and misuse of personal information parted with by the citizenry in the form of biometrics i.e. finger prints and iris scan, Mr. Divan made a passionate plea that requirement of enrollment for Aadhaar is designed to facilitate and encourage priva.!e H

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A sector operators to create applications that depend upon the Aadhaar data base for the purposes of authentication/verification. This would mean that non-governmental, private sector entities such as .banks, employers, any point of payment, taxi ~ervices, airlines, colleges, schools, movie theatres, clubs, service providers, travel companies, etc. will all utilise the Aadhaar data base and may also insist upon an Aadhaar nllmber B or Aadhaar authentication. This would mean that at every stage in an individual's daily activity his or her presence could be traced to a location in real time. One of the purposes of Aadhaar as projected by the respondents is that it will be a single point verification for KYC (Know Your Customer). This is permissible and indeed contemplated by the c impugned Act. Given the very poor quality of scrutiny of documents by private enrollers and enrollment agencies (without any governmental supervision) means that the more rigorous KYC process at present being employed by banks and other financial institutions will yield to a system which depends on a much weaker data base. This would eventually imperil the integrity of the financial system and also threaten the economic sovereignty of the nation. According to him, Aadhaar Act does not serve as an identity as incorrectly projected by the respondents but serves as a method of identification. Every citizen-state and citizen-service provider interaction requiring identification is sought to be captured and retained by the government at a central base and a whole ecology developed that would require reference to this central data base on multiple occasions in course of the day. He argued that this exercise of enrollment impermissibly creates the foundation for real time, continuous and pervasive identification of citizens in breach of the freedoms guaranteed under the Constitution.

40Copy pinpoint40. Another submission ofMr. Divan was that object behind Section l 39AA of the Act was clearly discriminatory inasmuch as it creates two classes: one class of those persons who volunteer to enrol themselves under Aadhaar Scheme and provide the particulars in their income-tax returns and second category of those who refuse to do so. This provision by laying down adverse consequences for those who do not enrol G becomes discriminatory qua that class and, therefore, is violative of Article 14 of the Constitution. Another limb of his submission was that it also creates an artificial class of those who object to such a provision of enrollment under Aadhaar. According to him, this would be violative ofequalityclause enshrined inArticle 14 of the Constitution and in support H

BINOY VISWAM v. UNION OF INDIA & ORS. 55 [A. K. SIKRI, J.]

of this submission, he relied upon the judgment of this Court in Nagpur A Improvement Trust&: Anr. v. Vitflal Rao & Ors.13. Paras 21, 22 and 2.6 reads as under: "21. The first point which was raised was: whether it is the State which is the acquiring authority or it is the Improvement Trust which is the acquiring authority, under the Improvement Act. It B seems to us that it is quite clear, especially in view of Section 17- A as inserted by para 6 of the Schedule, that the acquisition will be by the Government and it is only on payment of the cost of acquisition to the Government that the lands vest in the Trust. It is true that the acquisition is for the Trust and may be at its instance, but nevertheless the acquisition is by the Government. c

22. If this is so, then it is quite clear that the Government can acquire for a housing accommodation scheme either under the Land Acquisition Act or under the Improvement Act. If this is so, it enables the State Government to discriminate between one owner equally situated from another owner. D

xxx xxx xxx

26. It is now well-settled that the State can make a reasonable classification forthe purpose oflegislation. It is equally well-settled that the classification in order to be reasonable must satisfy two tests: (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, ifthe object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved . . 41. He also relied upon the judgment in the case of Subramanian Swamy v. Director, Central Bureau of Investigation & Anr. 14 • Paras G 58 and 59reads as under: "58. The Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes " (1973) 1 sec soo "(2014) s sec 682 H

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A oflegislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped B together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itselfis discriminatory, then explanation c that classification is reasonabldhaving rational relation to the object sought to be ac::ieved is immaterial.

59. It seems to us that classification which is made in Section 6- A on the basis of status in government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of their status or position, corrupt public servants are corrupters of public power. The con'upt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations amounting to an offence under the PC Act, 1988."

42Copy pinpoint42. In fine, submission of"Mr. Divan was that save and except by F "reading down", section I 39AA is unworkable. This is because Aadhaar by its very design and by its statute is "voluntary" and creates a right in favour of a resident without imposing any duty. There is no compulsion under the Aadhaar Act to enroll or obtain a number. If a person chooses not to enroll, at the highest, in terms of the Aadhaar Act, he or she may G be denied access to certain benefits and services funded through the Consolidated Fund oflndia. When the Aadhaar enrollment procedure is supposedly based on informed free consent and is voluntary a person _cannot be compelled by another law to waive free consent so as to alter the voluntary nature of enrollment that is engrafted in the parent statute. The right of a resident under the parent Act cannot be converted into a H

BINOY VISWAM v. UNION OF INDIA & ORS. 57 [A. K. SIKRl, J.]

duty so long as the provisions of the Aadhaar Act cannot be converted A into a duty so long as the provisions of the Aadhaar Act remain as they are. Argument was that Section 139 AA be read down to hold that it is only voluntary provision by taking out the sting of mandatoriness contained therein and there is no compulsion on any person to give Aadhaar number.

43Copy pinpoint43. We may mention at this ~tag,"..ttselfthat on conclusion of his B argumeQ.ts, Mr. Divan was put a ·specific query that most of the arguments presented by him endeavoured to project aesthetics of law and jurisprudel).Ce which had tM shades (Jf •.Right to Privacy' jurisprudence which could not be gone into by this Bench as this very aspect was already referred ~ the Constitution Bench. Mr. Divan was candid in accepting this fact and his submission was that in thes~ circumstances, c the option for this Bench was to stay the operation of proviso to sub- section (2) of Section 139AA of the Act till the decision is rendered by the Constitution Bench.

44Copy pinpoint44. Mr. Salman Khurshid, learned senior counsel who appeared in Writ Petition (Civil) No. 247of2017, while adopting the arguments of D Mr. Datar and Mr. Divan, made an additional submission, invoking the principle of right to live with dignity which, according to him, was somewhat different from the Right to Privacy. He submitted that although dignity inevitably includes privacy, the former has several other dimensions which need to be explored as well. In his submissions, the test to identify whether certain data collected about individuals is intrusive or merely expansive is to consider whether it causes embarrassment, indignity or invasion of privacy. Thus, the concept of dignity is quite distinct from that of privacy. Privacy is a conditional concept. One has it only to the extent that one's circumstances allow for it, as a matter of fact and law. While it is widely accepted that a situation may occur where a person may not have any Right to Privacy whatsoever, dignity is an inherent possession of every person, regardless of circumstance. In that sense, Dignity is an inherent dimension of equality, the basis of John Rawls 'Theory ofJustice'. The Social Contract theory propounded by Rousseau remains the ground on which John Rawls developed the model of the Original Position in w~ich the contours of the compact are conceived. Anything that reduces the personality of the participant, such as diluting the human element and substituting it with a number or biometric data, virtually destroys the model.. Dignity is an immutable value, held in equal measure at all times by all people, a quality privacy does not share. H

58 SUPREME COURT REPORTS [2017] 7 S.C.R.

A No court has ever held that a person can be stripped entirely ofhir/her dignity. The concept of dignity is deeper than that of privacy and its boundaries do not depend upon the circumstance of any individual and thus the State cannot legitimately fully infringe upon it. He pointed out that in M. Nagaraj & Ors. v. Union of India & Ors. 15 , this Court has, thus, elucidated the concept of Right to Dignity in the following manner: B "20 .... This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part Ill on the principle that certain unarticulated rights are implicit in the enumerated guarantees.

c xxx ' xxx xxx

26. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give (sic be given). It simply is. Every human being has dignity by virtue of his existence. The constitutional courts in Germany, therefore, see human dignity as a fundamental principle within the system of the basic rights. This is how the doctrine of basic structure stands evolved under. the German Constitution and by interpretation given to the concept by the constitutional courts."

45Copy pinpoint45. After explaining the aforesaid distinction be~een the two concepts, Mr. Khurshid argued that the impugned provision in the Income Tax Act was violative of right to live with dignitY guaranteed under Article 21 of the Constitution. He submitted that Right to Life and Liberty . F mentioned in Article 21 of the Constitution encompasses within its right to live with dignity as has been held in catena of cases by this Court. He explained in detail as to how the concept of dignity was dealt with by different jurists from time to time including Kant who identified dignity with autonomy and Dworkin who exemplified the doctrine of dignity on G the conception of living well, which itself is based on two principles of dignity, namely, selfrespect and authenticity.. In this sense, he submitted that living with dignity involves giving importance to living our life well and acting independently from the personal sense of character and commitment to standards and ideals we stand for. The mandatory. "(2006) s sec 212 H

BINOY VISWAM v. UNION OF INDIA & ORS. 59 [A. K. SIKRI, J.]

requirement of Aadhaar card makes an unwarranted intrusion in the A iJUportance we give to our bodily integrity in living our life well and compels human beings 'tci express themselves the way the State wants. He also submitted that the features relevant for upholding the dignity of a human being will be severely compromised with when the data are cross- referenced with data relating to other spheres of life and are disclosed B to third parties through different data collected for varied reasons. This would take place without the knowledge and consent of the poor assessees who are apparently required to mandatory obtain the Aadhaar card only for the plirposes of payment of taxes.

46Copy pinpoint46. Mr. Khurshid also raised doubts and fears about the unauthorised disclosure of the information given by these persons who C e11roll themselves under Aadhaar and submitted that in the absence of proper mech~nism in place to check unauthorised disclosure, the impugned provision of makingAadhaar card for filing tax returns cannot be said to be consistent with the democratic ideals. Mr. Khurshid also submitted that there was no compelling state interests in having such a provision introducing compulsive element and depriving from erstwhile voluntary nature of Aadhaar scheme. According to him, the 'proportionality of means' concept is an essential one since integrating data beyond what is really necessary for the stated purpose is clearly unconstitutional. He submitted that in light of the decision in the case of Gobind v. State of Madhya Pradesh 16 , which has been the position of this Court since the past forty-two years and has been cited with approval often, it is humbly submitted that the State has the onerous burden ofjustifying the impugned mandatory provision. The 'compelling state interest' justification is only one aspect of the broader 'strict scrutiny' test, which was applied by this Court in Anuj Garg v. Hotel Association ofIndia 17• The other essential facet is to demonstrate 'narrow tailoring', i.e., that the State must demonstrate that even if a compelling interest exists, it has adopted a method that will infringe in the narrowest possible manner upon individual rights. He submitted that neither is there any compelling State interest warranting such a harsh mandatory provision, nor has it been narrowly tailored to meet the object, if any. G

47Copy pinpoint47. In this hue, he also submitted that Section I 39AA of the Act violates the Rule of Law. Elaborating his argument, he submitted th11t a legal system which in general observes the rule oflaw treats its people "(1975) 2 sec 148 11 (2008) 3 sec 1 H

60 SUPREME COURT REPORTS · [2017] 7 S.C.R.

A as persons, in the sense that it attempts to guide their behaviour through affecting the circumstances of their action. lt, thus, presupposes that they are rational autonomous creatures and attempts to affect their actions and habits by affecting their deliberations. It satisfies men's craving for reasonable certainty of form as well as substance,· and for dignity of process as well as dignity ofresult. On the other hand, when the rule of B law is violated, it maybe either in the form of leading to uncertainty or it may lead to frustrated and disappointed expectations. · It leads t9 the first when the law does not enable people to foresee future developments or to form definite expectations. It leads to frustrated expectations when the appearance of stab.ility and certainty which encourages people to c rely and plan on the basis of the existing law is shattered by retroactive law-making or by preventing proper law-enforcement, etc. The evils of frustrated expectations are greater. Quite apart from the concrete harm they cause they also offend dignity in expressing disrespect for people's autonomy. The law in such cases encourages autonomous action only in order to frustrate its purpose. When such frustration is the result of human action or the result of the activities of social institutions then it expresses disrespect. Often it is analogous to entrapment: one is encouraged innocently t<J rely on the law and then that assurance is withdrawn and one's very reliance is turned into a cause of harm to one. Just as in the instant case, the impugned provision came into force when the order of the Court that Aadhaar card is not mandatory, still continues to operate.

48Copy pinpoint48. In the alternative, another submission of Mr. Khurshid was . that Section 139AA was retrospective in nature as per proviso to sub- section (2) thereof. As per the said proviso, on failure to give Aadhaar F number, the consequence was not only to render the PAN Card invalid prospectively but from the initial date of issuance of PAN Card in view of the expression 'as ifthe person had not applied for Permanent Account Number' which would meant that PAN Card would be invalidated by rendering the same void ab initio i.e. from retrospective effect. Such a retrospective effect, according to him, was violative of Article 20(1) of G the Constitution. Further, retrospective operation is not permissible without separate objects for such operations as held in Dayawati v. Inderjit 18 • In conclusion, learned senior counsel submitted that the law regarding mandatory requirement of Aadhaar card is a hasty piece of legislation "(1966) 3 SCR 275 H

BINOY VISWAM v. UNION OF INDIA & ORS. 61 [A. K. SIKRI, J.]

without much thought going into it. It is submitted that the Aadhaar card cannot be made mandatory for filing tax returns with such far-reaching consequences for non-compliance, unless and until suitable measures are put in place to ensure that the dignity of the assessees is not compromised with. The generalisation, centralisation and disclosure of biometric information, however, accidental it might be, has to be effectively controlled andJnechani&JnS have to be put in place to inquire and penalise those found g\lijty 6f~i~<i!i!sfllg such information. The need to do so is extremely crucial ·iri vi'ew of the fact that biometric systems may be bypassed, hacked, or even fail. Unless the same is done, the identity of the citizens will be reduced to a collection of instrumentalised markers. Further, the organisations and authorities allowed to conduct it c should be strictly defined .. There has to be a strict control over any systematic use of common identifiers. No such re-grouping of data can be allowed as coqld lead to the use of biometrics for exclusion of vulnerable groups. Brown considers surveillance as both a discursive and a material practice that reifies bodies around divisive lines. D Surveillance of certain communities has been both social as well as political norm. He further submitted that this Court cannot lose sight of the fact that the data collected under the impugned provision may be used to carry out discriminatory research and sort subjects into groups for specific reasons. The fact that the impugned provision creates an ~pprehension in the minds of the people, legitimate and reasonable enough with no preventive mechanism in place, is in itself a violation of the right to life and personal liberty as enshrined under the Constitution.

49Copy pinpoint49. Mr, Anando Mukherjee, learned counsel, appeared in Writ Petition (Civil) No. 304 of 2017, while reiterating the.submissions of earlier counsel, argued that Section 139AA was confused, self-destructive and self-defeating provision for the reason that on the one hand, it had an effect of making enrollment into Aadhaar mandatory, but, on the other hand, by virtue of the explanation contained in the provision itself, it is kept voluntary and as a matter of right for the same set of individuals and for the purposes of Section 139AA. He also submitted that there was a conflict between Section 139AA of the Act and Section 29 of G Aadhaar Act inasmuch as Section 29 puts a blanket embargo on using the core biometric information, collected or created under the Aadhaar Act for any purpose other than generation of Aadhaar numbers and authentication under the Aadhaar Act. Mr. Mukherjee went to the extent H

62 SUPREME COURT REPORTS [2017] 7 S.C.R.

A of describing the impugned provision as colourable exercise of power primarily on the ground that when Aadhaar Act is voluiltary in nature, there was no question of making this very provision mandatory by virtue of Section 139AA of the Act.

50Copy pinpoint50. Appearing for Union of India, Mr. Mukul Rohatgi, learned B Attorney General for India; put stiff resistance to the submissions advanced on behalf of the petitioners. In a bid to torpedo and pulverise the arguments as set forth on the side of t~e petitioners, the learned Attorneypyramid his arguments in the following style: In the first, Mr. Rohatgi made few preliminary remarks: First c such submission was that. many contentions advanced by the counsel for the petitioners touch upon the question of Right to Privacy which had already been referred to the Constitution Bench and, th~refore, those aspects were not required to be dealt with. In this behalf, he specifically referred to the following observations of this Court in its order dated August 11, 2015, which were made by the three Judge Bench in Writ D Petition (Civil) No. 494of2012: "At the same time, we are also of the opinion that the institutional integrity and judicial discipline reguire that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments - where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court." Notwithstanding these preliminary remarks, he rebutted the said argument based on Article 21, including Right to Privacy, by raising a plea that Right to Privacy/Personal Autonomy/Bodily Integrity is not absolute. He referred to the judgment of the United States Supreme G Court in Roe v. Wade 19 wherein it was held: "The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim assi:rted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy 19 410 U.S. 113 (1973) H

BINOY VISWAM v. UNION OF INDIA & ORS. 63 [A. K. SIKRI, J.]

previously articulated in the Court's decisions. The Court has A refused. to recognise an unlimited right of this kind in the past." He also relied upon the judgment of this Court in Sharda v. DharmpaP. 0 where the Court held that a matrimonial court has the power to order a person to undergo medical test. Passing of such an order by the court would not be in violation of the right to personal liberty under B Article 21 of the Indian Constitution.

51Copy pinpoint51. His second preliminary submission was that insofar as challenge to the validity of Section 139AA on other grounds is concerned, it is to be kept in mind that the constitutional validity of a statute could be chailenged only on two grounds, i.e. the Legislature enacting the law c was not competent to enact that particular law or such a law is violative of any of the provisions of the Constitution. In support, he referred to the various judgments of this Court.

52Copy pinpoint52. He, thus, submitted that no third ground was available to any of the petitioners to challenge the constitutional validity ofa legislative D enactment. According to him, the principle proportionality should not be read into Article 14 of the Constitution, while taking support from the judgment in K.T. Plantation Private Limited & Anr. v. State of Karnataka 21 , wherein it is held that plea of unreasonableness, arbitrariness, proportionality, etc. always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision. E

53Copy pinpoint53. Third introductory submission of the learned Attorney General was that the scope ofjudicial review in a fiscal statute was very limited and Section 139AA of the Act, being a part of fiscal statute, following parameters laid down in State ofMadhya Pradesh v. Rakesh Kohli & · Anr.22 had to be kept in mind: F "32. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i) there is always presumption in favour of constitutionality of a G law made by Parliament or a State Legislature, (ii) no enactment ·can be struck down by just saying that it is 20 c2oos) 4 sec 493 21 c2011)4 sec 414 · 22 c2012) 6 sec 312 H

64 SUPREME COURT REPORTS [2017] 7 S.C.R.

A arbitrary or unreas_onable or irrational but some constitutional infirmity has to be found, (iii) the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as Parliament and State Legislatures are supposed to be alive to the needs of the people whom they B represent and they are the best judge of the community by whose suffrage they come into existence, (iv) hardship is not relevant in pronouncing on the.constitutional validity of a fiscal statute or economic law, and (v) in the field of taxation, the legislature enjoys greater latitude c for classification ... ".

54Copy pinpoint54. In this hue, he also argued that the State enjoys the widest . latitude where measure of ec~:momic regulations are concerned {See - Secretary to Government of Madras & Anr. v. P.R. Sriramu/u & Anr. 23 , paragraph 15) and that ma/a jides cannot be attributed to the D Parliament, as held in G C. Kanungo v. State of Orissa 24, (paragraph 11 ). Also, the courts approached the issue with the presumption of constitutionality in mind and that Legislature intends and correctly appreciates the need of its own people, as held in Mohd. HanifQuareshi & Ors. v. State of Bihar25 (paragraph 15).

55Copy pinpoint55. On merits, the argument of Mr. Rohatgi was that once the aforesaid basic parameters are kept in mind, the impugned provision passes the muster of constitutionality. Ad".erting to the issue oflegislative competence, he referred to Article 246 and 248 of the Constitution as well as Entry 82 and Entry 97 ofList-I of Schedule-VII of the Constitution which empowers the Parliament to legislate on the subject pertaining to F income-tax. Therefore, it could not be said that the impugned provision made was beyond the competence of the Parliament. He also submitted that in any case residuary power lies with the Parliament and this power to legislate is plenary, as held in Synthetics and Chemicals Ltd. & Ors. v. State of U.P. & Ors. 26 G "56. On behalf of the State both Mr. Trivedi and Mr. Yogeshwar Prasad contended that regulatory power of the State was there " <1996) 1 sec 345 " (I 995) 5 sec 96 "AIR 1958 SC 731 H "(1990) 1 sec 109

BINOY VISWAM v. UNION OF INDIA & ORS. 65 [A. K. SIKRI, J.]

and in order to regulate it was possible to impose certain disincentives in the form of fees or levies. Imposition of these imposts as part of regulatory process is permissible, it was submitted. Our attention was drawn to the various decisions where by virtue of "police power" in respect of alcohol the State has imposed such impositions. Though one would not be justified in adverting to any police power, it is possible to conceive sovereign power and on that sovereign power to have the power of regulation to impose such conditions so as to enstit,ffhatJ~e t{;gulations are obeyed and complied with. We would.riot °like, howi;ver, to embark upon any theory of police power because the Indian Constitution does not recognise police power as such. But we must recognise c the exercise of sovereign power which gives the States sufficient authority to enact any law subject to the limitations of the Constitution to discharge its functions. Hence, the Indian Constitution as a sovereign State has power to legislate on all branches except to the limitation as to the division of powers between the Centre and the States and also subject to the fundamental rights guaranteed under the Constitution. The Indian State, between the Centre and the States, has sovereign power. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health, peace, morals, education and good order of the people. Sovereignty is difficult to define. This power of sovereignty is, however, subject to constitutional limitations. This power, according to some constitutional authorities, is to the public what necessity is to the individual. Right to tax or levy imposts must be in accordance with the provisions of the Constitution." F

56Copy pinpoint56. Rebutting the argument of Mr. Datar that by making the impugned provision mandatory the Legislature had acted contrary to the judgments of thi:> Court, Mr. Rohatgi argued that this argument was devoid of any merit on various counts: First, there was no judgment of this Court and the orders referred were only interim orders. Secondly, in any case, those orders were passed at a time when Aadhaar was G being implemented as a scheme in administrative/executive domain and the Court was considering the validity of Aadhaar scheme in that hue/ background. Those orders have not been passed in the context of examining the validity of any legislative meas~re. Thirdly, no final view H

66 SUPREME COURT REPORTS [2017] 7 S.C.R.

A is taken in the form of any judgment that Aadhaar is unconstitutional and, therefore, there is no basis in existence which was required to be removed. Fourthly, the Parliament was competent to pass the law and provide statutory framework to give legislative backing to Aadhaar in the absence of any such law which existed at that time. He, thus, B submitted that there was no question of curing the alleged basis of judgment/interim orders by legislation. He .specifically relied upon the following passage from the judgment in the case of Goa Foundation & Anr. y. State of Goa'& Anr. 27 : ·

"24. The principles on which first question would require to be answered are not in doubt. The power to invalidate a legislative or executive act lies with the Court. A judicial pronouncement, either declaratory or conferring rights on the citizens cannot be set at naught by a subsequent legislative act for that would amount to an encroachment on the judicial powers. However, the legislature would be competent to pass an amending or a validating act, if deemed fit, with retrospective effect removing the basis of the decision of the Court. Even in such a situation the courts may not approve a retrospective deprivation of accrued rights arising from a judgment by means of a subsequent legislation (Madan Mohan Pathak v. Union of India). However, where the Court's judgment is purely declaratory, the courts will lean in support of the legislative power to remove the basis of a court judgment even retrospectively, paving the way for a restoration of the status quo ante. Though the consequence may appear to be an exercise to overcome the judicial pronouncement it is so only'at first blush; '1 a closer scrutiny would confer legitimacy on such an exercise as the same is a normal adjunct of the legislative power. The whole exercise is one of viewing the different spheres of jurisdiction exercised by the two bodies i.e. the judiciary and the legislature. The balancing act, delicate as it is, to the constitutional scheme is guided by the well-defined values. which have found succinct manifestation in the views of this Court in Bakhtawar Trust." G

57Copy pinpoint57. Mr. Rohatgi thereafter read extensively from the counter affidavit filed on behalf of the Union oflndia detailing the rational and objective behind introduction of Section 139AA of the Act. He submitted that the provision aims to achieve, inter alia, the following objectives: 21 (20 J6) 6 sec 602 H

BINOY VISWAM v. UNION OF INDIA & ORS. 67 [A. K. SIKRI, J.]

(i) This provision was introduced to tackle the problem of multiple A PAN cards to same individuals and PAN cards in the name of fictitious individuals are common medium of money laundering, tax evasion, creation and channelling of black money. PAN numbers in name of firm or fictitious persons as directors or shareholders are used to create layers of shell companies through which the aforesaid activities are done. A de-duplication exercise was done in the year 2006 and a large number of PAN numbers were found to be duplicate. The problem of some persons fraudulently obtaining multiple PANs and using them for making illegal transactions still exists. Over all 11.35 lakh cases of duplicate PAN/fraudulent PAN have been detected and accordingly such PANs have been deleted/ deactivated. Out of this, around 10.52 lakh cases pertain to individual assessees. Total number of Aadhaar for individuals exceeds 113 crores whereas total number of PAN for individuals is around 29 crore. Therefore, whereas the Aadhaar D Act applies to the entire population, the Income Tax Act applies to a much smaller sub-set of the population, i.e. the tax payers. In order to ensure One Pan to One Person, Aadhaar can be the sole criterion for allotment of PAN to individuals only after all existing PAN are seeded with Aadhaar and quoting of Aadhaar is mandated for new PAN applications. E Counter affidavit filed by the Union ofIndia also gives the following instances of misuse of PAN: (a) In NSDL scame of2006, about one lakh bogus bank and demat accounts were opened through use of PANs. The real PAN owners were not aware of these accounts. F

(b) As Banks progressively started insisting on PANs for opening . of bank accouqts, unscrupulous operators managed multiple PANs for providing entries and operating undisclosed accounts for making financial transactions. G (c)Entry operators manage a large number of shell companies using duplicate PANs or PANs issued in the name of dummy directors and name lenders. As the persons involved as bogus directors are usually the same set of persons, linkage with Aadhaar would prevent such misuse. Further, it will also be H

68 SUPREME COURT REPORTS [2017] 7 S.C.R.

A expedient for the Enforcement agencies to identify and red flag such misuses in future. (d)Cases have also been found where multiple PANs are acquired by a single entity by dubious means and used for raising loans from different banks. In one such case at Ludhiana, multiple B PANs were found acquired by a person in his individual name as well as in the name of his firms by dubious means. During investigation, he admitted to have acquired multiple PANs for raising multiple loans from banks and to avoid adverse CIBIL information. Prosecution has been launched by the Income Tax Department in this case u/s 277 A, 278, 278B of the Act in c addition (ii) To tackle the problem of black money, Mr. Rohatgi pointed out that the Second Report of the Special Investigation Team (SIT) on black money, headed by Justice M.B. Shah (Retd.), after observing the menace of corruption and black money, recommended as follows: "At present, for entering into financial/business transactions, persons have option to quote their PAN or UID or passport number or driving license or any other proof of identity. However, there is no mechanism/system at present to connect the data available with each of these independent proofs of ID. It is suggested that these databases be interconnected. This would assist in identifying multiple transactions by one person with different IDs." The SIT in its Third Report has recommended the establishment of a Central KYC Registry. The rational for the SIT recommendations was to prove a verifiable and authenticable identity for all individuals and Aadhaar provides a mechanism to serve that purpose in a federated architecture without aggregating all the information at one place. G The Committee headed by the Chairman, CBDT on 'Measures to tackle black money in India and abroad' reveals that various authorities are dealing with the menace of money laundering being done to evade taxes under the garb of shell companies by the persons who hold multiple bogus PAN numbers under different names or variations of their names, providing accommodation H

BINOY VISWAM v. UNION OF INDIA & ORS. 69 (A. K. SIKRI, J.]

entries to various companies and persons to evade taxes and A introduce undisclosed and unaccounted income of those persons into their companies as share applications or loans and advances or booking fake expenses. These are tax frauds and devices which are causing loss to the revenue to the tune of thousands of crores. B (iii) Another objective is to curb the menace of shell companies. It is submitted in this regard that PAN is a basis of all the requirements in the process of incorporation of a company. Even an artificial juridical person like a company is granted PAN. It is required as an ID proof for incorporation of a company, applying for DIN, digital signature etc. PAN is also c required for opening a bank account in the name of a company or individuals. Basic documents required for obtaining a PAN are ID proof and address proof. It has been observed that these documents which are a basis of issuance of PAN could easily be forged and, therefore, PAN cards issued on the basis D of such forged documents cannot be genuine and it can be used for various financial frauds/crime. Aadhaar will ensure that there is no duplication of identity as biometric will not allow that. If at the time of opening of bank accounts itself, the more robust identity prooflike Aadhaar had been used in place of PAN, the menace of mushrooming of non-descript/shell/ E jamakharchi/bogus companies would have been prevented. There is involvement of natural person in the complex we~ of shell companies only at the initial stage when the shareholders subscribe to the share capital of the shell company. After that may layers are created because there is company to company transaction and much more complex structure of shell company compromising the finaBcial integration of nation is formed which makes it almost impossible to identify the real beneficiary (natural person) involved in these shell companies. These shell companies have been used for purpose of money laundering at a large scale. The fake PAN cards have facilitated the enormous growth of shell companies which were being used for layering of funds and illegal transfer of such funds to some other companies/persons or parked abroad in the guise of remittances against import. The share capital of these shell H·

70 SUPREME COURT REPORTS [201.7] 7 S.C.R.

A companies are subscribed by fake shareholders through' numerous bank accounts opened with the use of fake PAN cards at the initial stage. · (iv) According to the respondents, this provision will help in widening of tax base. It was pointed out that more than 113 B crore people have registered themselves under Aadhaar. Adults coverage of Aadhaar is more than 99%. Aadhaar being a unique identification, the problem ofbogus or duplicate PANs can be dealt with in a more systematic and foolproof manner. According to the respondent, in fact, it has already shown results c as Aadhaar has led to weeding outduplicate and fakes in many welfare programmes such as PDS, MNREGS, LPG Pahal, Old Age pension, scholarships etc. during the last two years and it has led to savings ofapproximately Rs.49,000 crores to the exchequer.

58Copy pinpoint58. Mr. Rohatgi also referred to that portions of the counter D affidavit which narrates the following benefitsAadhaar seeding in PAN database: (a) Permanent Account Number (PAN) - PAN is a ten-digit alpha-numeric number allotted by the Income Tax Department to any 'person' who applies for it or to whom the department E a.Hots the number without an application. One PAN for one person is the guiding principle for allotment of PAN. PAN acts as the identifier of taxable entity and aggregator of all financial transactions undertaken by the. taxable entity i.e.'.· 'person'. (b) Legal provisions relating to PAN - PAN is the key or F identifier of all computerized records relating to the taxpayer. The requirement for obtaining of PAN is mandated through Section l 39A of the Act. The procedure for application for PAN is prescribed in Rule 114 of the Rules. The forms prescribed for PAN application are 49A and 49AA for Indian G and Foreign Citizens/Entities. Quoting of PAN has been mandated for certain transactions above specified threshold value in Rule l 14B of the Rules. (c) Uniqueness of PAN - For achieving the objective of one PAN to one assessee, it is required to maintain uniqueness of H

BINOY VISWAM v. UNION OF INDIA & ORS. 71 [A. K. SIKRI, J.]

PAN. The uniqueness of PAN is achieved by conducting a A de-duplication check on all already existing allotted PAN against the data furnished by new applicant. Under the existing system · of PAN only demographic data is captured. De-duplication process is carried out using a Phonetic Algorithm whereby a Phonetic PAN (PPAN) is created in respect of each applicant B using the data of applicant's name, father's name, date ofbirth, gender and status. By comparison of newly generated PPAN with existing set of PPANs of all assessees duplicate check is carried out and it is ensured that same person does not acquire multiple PANs or one PAN is not allotted to multiple persons. Due to prevalence of common names and large number of C PAN holders, the demographic way of de-duplication is not foolproof. Many instances are found where multiple PANs · have been allotted to one person or one PAN has been allotted to multiple persons despite the application of above-mentioned de-duplication process. While allotment of multiple PAN to D one person has the risk of diversion of income of person into several PANs resulting in evasion of tax, the allotment of same PAN to multiple persons results in· wrong aggregation and assessment of incomes of several persons as one taxable entity represented by single PAN. (d) Presently verification of original documents in only 0.2% cases E (200 out of 1,00,000 PAN applications) is done on a random basis which is quite less. In the case of Aadhaar, 100% · verification is possible due to availability of on-line Aadhaar authentication service provided by-the UIDAI. Aadhaar seeding in PAN database will make PA_N allotment process F more robust. (e)Seeding of Aadhaar .number into PAN database will allow a robust way of de-duplication as Aadhaar number is de- duplicated using biometric attributes of fingerprints and iris images. The instance· of a duplicate Aadhaar is almost non- G existent Further seeking of Aadhaar will allow the Income Tax Department to weed out any undetected duplicate PANs. It will also facilitate resolution of cases of one PAN allotted to multiple persons.

59Copy pinpoint59. After stating the aforesaid purpose, rational and benefits, the, H

72 SUPREME COURT REPORTS [2017] 7 S.C.R.

A learned Attorney General submitted that the main provision is not violative of any constitutional rights of the petitioners. According to him, the provision was not discriminatory at all inasmuch as it was passed on reasonable classification, the two classes being tax payers and non tax payers. He also submitted that it was totally misconceived that this provision had no rational nexus with the objective sought to be achieved B in view of the various objectives and benefits which were sought to be achieved by seeding Aadhaar with PAN. Mr. Rohatgi also referred to various orders and judgments of this Court whereunder use of Aadhaar was endorsed, encouraged or even directed. Following instances are cited: c 60. The importance and utility of Aadhaar for delivery of public services like PDS, curbing bogus admissions in schools and verification of mobile number subscribers has not only been upheld but endorsed and recommended by this Court.

61Copy pinpoint61. This Court in the case of PUCL v. Union of India28 has D approved the recommendations of the High Powered Committee headed by Justice D.P. Wadhwa, which recommended linking of Aadhaar with PDS and encouraged State Governments to adopt the same.

62Copy pinpoint62. This Court in State ofKera/a & others vs. President, Parents Teachers Association, SNVUP and Others 29 has directed use of E Aadhaar for checking bogus admissions in schools with•the following observations: "18. We are, however, inclined to give a direction to the Education Department, State ofKerala to forthwith give effect to a circular dated 12.10.2011 to issue UID Card to all the school children and F follow the guidelines and directions contained in their circular. Needless to say, the Government can always adopt, in future, better scientific methods to curb such types of bogus admissions in various aided schools."

63Copy pinpoint63. While monitoring the PILs relating to night shelters for the homeless and the right to food through the public distribution system, this G Court has lauded and complimented the efforts of the State Governments for inter alia carrying out bio-metric identification of the head of family of each household to eliminate fictitious, bogus and ineligible BPL/ AAY household cards. "c2011) 14 sec 331 H "c2013) 2 sec 10s

BINOY VISWAM v. UNION OF INDIA & ORS. 73 [A. K. SIKRI, J.]

64Copy pinpoint64. A two Judge Bench of this court in People's Union for Civil A · Liberties (PDS Matter) v. Union of India & Ors. 30 has held that computerisation is going to help the public distribution system in the countly in a big way and encouraged and endorsed the digitisation of database including bio-metric identification of the beneficiaries. In fact, this Court had requested Mr. Nandan Nilekani to suggest ways in which the computerisation process of PDS can be expedited.

65Copy pinpoint65. In the case of People's Union/or Civil Liberties v. Union of India & Ors. 31 , this Court has also endorsed bio-metric identification of homeless persons so that the benefits like supply of food and kerosene oil available to persons who are below poverty line can be extended to the correct beneficiaries.

66Copy pinpoint66. In the case of Lokniti Foundation v. Union of India & Ors. 31 , this Court has disposed of the writ petition while approving the Aadhaar based verification of existing and new mobile number subscribers and upon being satisfied that an effective process has been evolved to ensure identity verification.

67Copy pinpoint67. Mr. Sengupta, learned counsel arguing on behalf of UIDAI, made additional submissions specifically answering the doctrine of proportionality argument advanced by Mr. Datar as well as on the aspect ofinformational self-determination. His submissions in this behalf were that proportionality should not be read into Article 14 of the Constitution and in any case no proportionality or other Article 14 violation had been made out in the instant case. He also argued that there is no absolute right to informational self-determination; to the extent such right may exist it is part of the Right to Privacy whose very existence contours is before the Constitution Bench of this Court. F

68Copy pinpoint68. Adverting to the doctrine of proportionality, he referred to the judgments of this Court iu Modern Dental College and Research Centre3 3 wherein this doctrine is explained and applied and submitted that the doctrine is applied only in the context of Article 19(1 )(g) and not G Article 14 of the Constitution. He pointed out that proportionality is not

74 SUPREME COURT REPORTS [2017] 7 S.C.R.

A the governing law even in"the United Kingdom for cl11ims analogous to Article 14 of the Constitution. His passionate submission was· that proportionality supplanting traditional review in European Court of Human Rights cases and not remaining applicable in traditional judicial review claims has caused immense confusion in British pubic law. Narrating the stru~ture ofArticle 19, submission of Mr. Sengupta was that freedoms which were enlisted under Article 19(1) were not the absolute freedoms and they were subject to reasonable restrictions, as provided under sub- article (2) to (6) of Article 19 itself. It is because of this reason, while examining as to whether a par.ticular measure violated any of the freedoms or was a reasonable restriction, balancing exercise was to b~ done by the courts and this balancing exercise brings the element of proportionality. However, this was not envisaged in Article 14 at all.

69Copy pinpoint69. Coming to the impugned provision and referring to the penal consequences provided in proviso to Section 139AA(2), he argued that the test of whether' penalty is proportionate is not the same as the doctrine of proportionality. Proportionate penalty _is an incident of arbitrariness whereas there cannot be any arbitrariness qua a. statute. He also submitted that on facts penalty provided in the impugned provision is deemed to be the same as that for not filing income tax return with valid PAN. He also argued that there was rio violation of Article 14 inasmuch as classification had a reasonable nexus with the object enshrined in the impugned provision. It was open to the Legislature t~ determine decrease of harm and act accordingly and the Legislature does not have to tackle problem 100% for it to have a rational nexus. Since individual assessees are prone to the problem arid financial frauds using fake PAN, whether individually Or in the guise of legal persons, Aadhaar aims at tackling problem which exhibited a rational nexus with the object. According to Mr. Sengupta, there wa~ no discriminatory object inasmuch as the object . is to weed out duplicate PANs that allow financial and tax fraud. Therefore, the provision is not discriminatory in nature.

70Copy pinpoint70. Dealing with the argument of right to informational self- G determination, the learned counsel submitted that as a matter of c.urrent practice in India, no absolute right to determine what information about oneself one wants to disclose; several pieces of personal information . are required by .Jaw. The perils of comparative law in merely transplanting from German law; the need to develop an Indian understanding of privacy and self-determination in the Indian context. Even in German law, the H

'BINOY VISWAM v. UNION OF INDIA & ORS. 75 [A. K. SIKRI, J.]

·judgment quoted by the petitioner does not demonstrate an untrammelled A Right to Privacy or information self-determination. The world over, infopnation over oneself is the most critical element of privacy; the contours of which are to be determined by a Constitution Bench. A Caveat

71Copy pinpoint71. Before we enter into the discussion and weigh the merits of B arguments addressed on both sides, one aspect needs to be made absolutely clear, though it has been hinted earlier as well. Conscious of the fact that challenge to Aadhaar scheme/legislation on the ground that it was violative of Article 21 of the Constitution is pending before the Constitution B¹:nch and, therefore, this Bench could not have decided c that issue, counsel for the'Petitioners had submitted that they would not be pressing the issue of Right to P:ivacy. Notwithstanding the same, it was argued by Mr. Divan, though in the process Mr. Div!ln emphasised that he was touching upon other facets of Article 21. Likewise, Mr. Salman Khurshid while arguing that the impugned provision was violative ofArticle 21, based his submission on Right to Human Dignity as a facet D of Article 21. He also emphasised that the concept of human dignity was different from.Right to Privacy. We have taken note of·these arguments above. However, we feel all these aspects argued by the petitioners overlap with privacy issues as different aspects of Article 21 of the Constitution. Right to Let Alone has the shades of Right to Privacy E and it is so held by the Court in R. Rajagopal & Anr. v. State of Tamil Nadu & Ors. 34 : "26. We ni.ay now summarise the broad principles flowing from the above discussion: (1) The right to privacy is implicit in the right to life and liberty F guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child- bearing and education among other matters. None can publish anything concerning the above matters without .his consent - G whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and woµld be liable in an action for damages. Position rpay, however, be different, if a person voluntarily thrusts himself ·~ (1994) 6 sec 632 H

76 SUPREME COURT REPORTS [2017] 7 S.C.R.

A into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter B becomes a matter of public record, the right to privl!,cy no longer subsists and it becomes a legitimate subject for comment by press and media among others: We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be car¥ed out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be c subjected to the indignity of her name and the incident being publicised in press/media. (3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an inder ent rule. In the case of public officials, it is obvious, right tc· privacy, or for that matter, the remedy of action for damages is simply not available with respect to their ~cts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by tfi€defendant) with reckless disregard for truth. In such a ca~~, it would be enough for the defendant (member of the press or media)' to prove that he acted after a reasonable verification of th~ facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution oflndia, represent exceptions to this rule. (4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

BINOY VISWAM v. UNION OF INDIA & ORS. 77 [A. K. SIKRI, J.]

(5) Rules 3 and 4 do not, however, mean that Official Secrets A Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media. (6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media." So is the Right to Informational Self Determination, as specifically B spelled out by US Supreme Court in United States Department of Justice v. Reporters Committee/or Freedom ofthe Press 35 • Because of the aforesaid reasons and keeping in mind the principle of judicial discipline, we have made conscious choice not to deal with these aspects and it would be for the parties to raise these issues before the Constitution c Bench. Accordingly, other arguments based on Articles 14 and 19 of the Constitution as well as competence of the legislature to enact such law are being examined.

72Copy pinpoint72. We have deeply deliberated on the arguments advanced by various counsel appearing for different petitioners as well as counter submissions made by counsel appearing on behalf of the State. Undoubtedly, the issue that confronts us is of seminal importance. In recent times, issues about the proprietary, significance, merits and demerits have generated lots of debate among intelligentia. The Gov:emment claims that this provision is introduced in the Statute to achieve laudable objectives and it is in public interest. It is felt that this technology can solve many development challenges. The petitioners argue that the move is impermissible as it violates their fundamental rights. It falls in the category of, what Ronald Dworkin calls, "hard cases". Nevertheless, the duty of the court is to decide such cases as well and give better .decision. While undertaking this exercise ofjudicial review, let us first keep in mind the width and extent of power of judicial review of a legislative action. The Court cannot question the wisdom of the Legislature in enacting a particular law. It is required to ac.t within the domain available to it. Scope of Judicial Review of Legislative Act G

73Copy pinpoint73. Under the Constitution, Supreme Court as well as High Courts are vested with the power of judicial review of not only administrative acts of the executive but legislative enactments passed by the legislature as well. This power is given to the High Courts under Article 226 of the 35 489 U.S. 749 (1989) H

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A Constitution and to the Supreme Court under Article 32 as well as Article 136 of the Constitution. At the same time, the parameters on which the power of judicial review of administrative act is to be undertaken are different from the parameters on which validity oflegislative enactment is to be examined. No doubt, in exercises of its power of judicial review of legislative action, the Supreme Court, or for that matter, the High B Courts can declare law passed by the Parliament or the State Legislature as invalid. However, the power to strike down primary legislation enacted by the Union or the State Legislatures is on limited grounds. Courts can strike down legislation either on the basis that it falls foul of federal · distribution of powers or that it contravenes fundamental rights or other C Constitutional rights/provisions of the Constitution oflndia. No doubt, since the Supreme Court and the High Courts are treated as the 'ultimate arbiter in all matters involving interpretation of the Constitution, it is the Courts which have the final say on questions relating to rights and whether such a right is violated or not. The basis of the aforesaid statement lies in Article 13(2) of the Constitution which proscribes the State ti-om making 'any law which takes away or ~bridges the right conferred by Part III', enshrining fundamental rights. It,categorically s~ates that any law made in contravention thereof, to the extent of the contravention, be void.

74Copy pinpoint74. We can also take note ofArticle 372 of the Constitution at this stage which applies to pre-constitutional laws. Article 372(1) reads as under: "372. Continuance in force of existing laws and their adaptation.- (!) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority."

G In the context ofjudicial review oflegislation, this provision gives an indication that all laws enforced prior to the commencement of the Constitution can be tested for compliance with the provisions of the Constitution by Courts. -Such a power is recognised by this Court in Union of India & Ors. v. Sic01'! Limited & Anr. 36 • In that judgment, "(2009) 2 sec 121 H

·. BINOY VISWAM v. UNION OF INDIA & ORS. 79 [A. K SIKRI, J.]

it was also held that since the term 'laws', as per Article 372, includes common law the power of judicial review of legislation, which is a part of common law ap{llicable in India before the Constitution came into force, would continue to vest in the Indian courts.

75Copy pinpoint75. With this, we advert to the discussion on the grounds ofjudicial review that are available to adjudge the validity of a piece of legislation passed by the Legislature. We have already mentioned that a particular law or a provision contained in a statute can be invalidated on two grounds, namely: (i) it is not within the competence of the Legislature which passed the law, and/or (ii) it is in contravention ofany of the fundamental rights stipulated in Part III of the Constitution or any either right/ provision of the Constitution. These contours of the judicial review are spelled out in the clear terms in case of Rakesh Kohli3 7, and particularly the following paragraphs: "16. The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand: Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared'bad.

17. This Court has repeatedly stated that legislative enactment can be struck, down by court only on two grounds, namely (i) that the appropriate legislature does not have the competence to make the law, and (ii) that it does not (siC) take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or .any other constitutional provisions. In McDowell and Co. while p dealing with the challenge to an enactment based on Article 14, this Court stated in para 43 of the Report as follows: (SCC pp. 737-38) ""43 .... A law made by Parliament or the legislature can be struck dawn by courts on two grounds and two grounds alone G viz. (1) lack oflegislative competence, and (2) violation ofany of the fundamental rights guaranteed in Part III of th\: Constitution or of any other constitutional provision. There is no third ground .... if an enactment is challenged as violative " Footnote 20 above H

80 SUPREME COURT REPORTS [2017] 7 S.C.R. .·

A of Artie; le 14, it can be struck down only if it is found that it is violative of the equality clause/equal p~otection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19( 1), it can be struck down only if it is found not saved by any of the clauses (2) to {6) of Article 19 and so B on; No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other c9nstitutional infirmity has to be found before ii:tvalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed c as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom:" (emphasis supplied)

D 26. In Mohd. Hanif Quareshi, the Constitution Bench further · · observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to sh9w tliat there flas been a clear violation of the , constitutional principles. It stated in paraJ 5 of the Report as under: E (AIR pp. 740-41) ""15 .... The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its ~iscriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees ofharm and may confine its restrictions to those case~ where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation."

27. The above legal position has been reiterated by a Constitution Bench of this Court in Mahant Moti Das v. S.P. Sahi.

. BINOY VISWAM v. UNION OF INDIA & ORS. 81 [A. K. SIKRI, J.]

28. In Hamdard Dawakhana v. Union of India, inter alia, while A referring to the earlier two decisions, namely, Bengal Immunity Co. Ltd. and Mahant Moti Das, it was observed in para 8 of the Report as follows: (Hamdard Dawakhana case, AIR p. 559): '"'8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in B Part III of the Constitution, the ascertainment of its true nature · and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, it!l purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factofs such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, _the remedy for the disease which the legislature resolved to cure and the true reason for the remedy .... " In Hamdard Dawakhana, the Court also followed the statement of law in Mahant Moti Das and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union oflndia and State of Bombay v. F.R Balsara and reiterated the principle that presumption was always in favour of constitutionality of an enactment. xx xx xx E

30. A well-known principle that in the field of taxation, the legislature enjoys a.greater latitude for classification, has been noted l:iy this Court in a long line of cases. Some of these decisions are Steelworth Ltd. v. State ofAssam; Gopal Narain v. State of U.P.; Ganga Sugar Corpn. Ltd. v. State of F U.P.; R.K. Garg v. Union of India; and Statt;: of W.B. v. E.I.T.A. India Ltd."

76Copy pinpoint76. Again inAshok Kumar Thakur v. Union of India & Ors. 38 , this Court made the following pertinent observations: G "219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grnunds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions " (2008) 6 sec 1 H

82 SUPREME COURT REPORTS [2017] 7 S.C.R.

A" of the Constitution. If any of the pro'visions of the legislation violat~s fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power ofjudicial review. A legislation could alsq be challenged as unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts the B fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutipnal amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This · c Court in State ofRajasthan v. Union ofIndia said: (SCC p. 660, para 149) "149 .... if a question brought before the court is purely a political question not invl!llving determination of any legal or constitutional right or obligation, the court would not entertain. D it, since the court is concerned only with adjudication of legal rights and liabilities." ' Therefore, the plea of the petitioner that the legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea and it is only E to be rejected."

77Copy pinpoint77. Furthermore, it also needs to be specifically noted that this Court emphasised that apart from the aforesaid two grounds no third ground is available to invalidate any piece oflegislation. In this behalfit would be apposite to reproduce the following observations from State of F A.P. & Ors. v. McDowell & Co. & Or~. 39 , which is a judgment rendered by a three Judge Bench of this Court; "4:3; .. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the G fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisiqn. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even " ( 1996) 3 sec 109 H

. BINOY VISWAM v. U:[\/10~ OF INDIA & 6RS. 83 . [A. K. SIKRI; J.] . . . \A . . . in U.S.A., these concepts and in ·particullr the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever mime it is characterised, the ground of invalidation must fall within the four comers of the two grounds mentioned above. In other wo_rds, say, ifan enactment is challenged as violative of Article _14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. C Similarly, if an enactment is challenged as ".iolative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19( 1), it can be struck down only if it is found not saved by any of the clauses (2) to {6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. D s·ome or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ,. ground that court thinks it unjustified. Parliament and the · legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in E judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited .to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety ·(see Council of Civil Service Unions_ v. Minister for Civil F Service [1985 AC 374: (1984) 3 All ER 935 : (1984) 3 WLR 1I74l which decision has been accepted by this Court as well). The appllcabiiity of doctrine of proportfonaiity even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for Home Deptt., ex p G · Brind [1991 AC 696 : (1991) I All ER 720] AC at 766-67 and · 762.) It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled... " ··

84 SUPREME COURT REPORTS [2017] 7 S.C.R.

78Copy pinpoint78. Another aspect in this context, which needs to be emphasized, is that a legislation cannot be declared unconstitutional on the ground that it is 'arbitrary' inasmuch as examining as to whether a particular Act is arbitrary or not implies a value judgment and the courts do not examine the wisdom of legislative choices and, therefore, cannot undertake this exercise. This was so recognised in a recent judgment of a this Court Rajbala & Ors. v. State of Haryana & Ors. 40 wherein this Court held as under: "

64. From the above extract from McDowell & Co. case it is clear c that the courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is "arbitrary" since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some speci fie provision of the Constitution. To undertake such an examination D would amount to virtually importing the doctrine of"substantive due process" employed by the Amefican Supreme Court at an earlier point of time while examining the constitutionality oflndian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This Court E Jong back· in A.S. Krishna v. State of Madras declared that the doctrine of due process has no application under the Indian Constitution As pointed out by Frankfurter, J., arbitrariness became a mantra.

65. For the above reasons, we are of the opinion that it is not F permissible for this Court to declare a statute unconstitutional on the ground that it is 'arbitrary'."

79Copy pinpoint79. Same sentiments were expressed earlier by this Court in K. T. Plantation Private Limited & Anr. 41 in the following words: "205. Plea of unreasonableness, arbitrariness, proportionality, etc. G always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the · court will be substituting its wisdom to that of the legislature, which •• (2016) 2 sec 445 H 41 Footnote 19 above ..

BINOY VISWAM v. UNION OF INDIA & ORS. 85 [A. K. SIKRI, J.]

is impermissible in our constitutional democracy." A A fortiorari, a law cannot be invalidated on the ground that the Legislature did not apply its mind or it was prompted by some improper motive.

80Copy pinpoint80. It is, thus, clear that in exercise of power of judicial review, Indian Courts are invested with powers to strike down primary_ legislation B enacted by the Parliament or the State legislatures. However, while undertaking this exercise of judicial review, the same is to be done at three levels. In the first stage, the Court would examine as to whether impugned provision in a legislation is compatible with the fundamental rights or the Constitutional provisions (substantive judicial review) or it c falls foul of the federal distribution of powers (procedural judicial review). If it is not found to be so, no further exercise is needed as challenge would fail.· On the other hand, if it is found that Legislature lacks competence as the subject legislated was not within the powers assigned in the .list in VII Schedule, no further enquiry is needed and such a law is to be declared as ultravires the Constitution. However, while undertaking substantive judicial review, if it is found that the impugned provision appears to be violative of fundamental rights or other Constitutional rights, the Court reaches the second stage of review. At this second phase of enquiry, the Court is supposed to undertake the exercise as to whether the impugned provision can.still be saved by reading it down so as to bring it in conformity with the Constitutional provisions. If that is not achievable then the enquiry enters the third stage. If the offending portion of the statute is severable,. it is severed and the Court strikes down the impugned provision declaring the same as unconstitutional.

81Copy pinpoint81. Keeping in view the aforesaid parameters we, at this stage, we want to devote some time discussing the arguments of the petitioners based on the concept of 'limited government'. Concent of 'Limited Government' and its impact on powers of Judicial Review

82Copy pinpoint82. There cannot be any dispute about the manner in which Mr. G Shyam Divan explained the concept of 'limited Government' in his submissions. Undoubtedly, the Constitution oflndia, as an instrument of governance of the State, delineates the functions and powers of 'fach wing of the State, namely, the Legislature, the Judiciary and the Executive. It also enshrines the principle pf separation of powers which mandates H

86 SUPREME COURT .REPORTS [2017] 7 S.C.R.

BINOY VISWAM v. UNION OF INDIA & ORS. 87 [A. K. SIKRI, J.] .

authority to enact any law subject to the limitations of the A Constitution to discharge its functions. Hence, the Indian Constitution as a sovereign State has power to legislate on all branches except to the limitation as to the division of powers between the Centre and the States and also subject to the fundamental rights guaranteed under the Constitution. The B Indian States, between the Centre.and the States, has sovereign power. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health, peace, morals, education and good order of the people. Sovereignty is difficult to define. This power of sovereignty is, however, subject to constitutional limitations. "This power, according to C . some constitutional authorities, is to the public what necessity is to the individual. Right to tax or levy impost must be in. accordance with the provisions of the Constitution." . . . . . 21. What then are the Constitutional limitations on the power of · the State legislatures to levy taxes or for that matter enact D legislations in the field reser¥ed for them under the relevant entries of List II and III of the Seventh Schedule. The first and the . . . . · foremost of these limitations appears in Article 13 of the Constitution of India which declares that all laws in force in the territory oflndia immediately before the commencement of the "E Constitution are void to the extent they are inconsistent with the provisions ofPart mdealing with the fundamental rights guaranteed to the citizens. It forbids the States from making any law which takes away or abridges, any provision of Part UL Any law made in contravention of the said rights shall to the extent of contravention be void. There is no gain saying that the power to enact laws has F · been conferred upon the Parliament subject to the above Constitutional limitation. So also in terms of Article 248, the residuary power to impose a tax not otherwise mentioned in the Co~current List or the State List has been vested In the Parliament to the exclusion of the State legislatures, and the States' power to levy taxes limited to what is specifically reserved in their favour G and no more.

22. Article 249 similarly e!Tlpowers the Parliament to legislate with ·respect to a matter in the State List for national interest provided the Council of States has declared by a resolution supported by H

88 SUPREME COURT REPORTS . [2017] 7 S.C.R.

A not less than two-thirds of the members present and voting that it is necessary or expedient in national interest to do so. The power is available till such time any resolution remains in force in terms of Article 249(2) and the proviso thereunder.

23. Article 250 is yet another provision which empowers the B Parliament to legislate with respect to any matter in the State List when there is a proclamation of emergency. In the event of an inconsistency between laws made by Parliament under Articles 249 and 250, and laws made by legislature of the States, the law made by Parliament shall, to the extent of the inconsistency, prevail over the.law made by the State in terms of Article 251. c

24. The power of Parliament to .legislate for two or more States by consent, in regard to matters not otherwise within the power of the Parliament is regulated by Article 252, while Article 253 starting with a non-obstante clause empowers Parliament to make any law for the whole country or l),ny part of the territory oflildia for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."

83Copy pinpoint83. Mr. Divan, however, made an earnest endeavour to further. broaden this concept of 'limited Government' by giving an altogether different slant. He submitted that there are certain things that the States simply cannot do because the action fundamentally alters the relationship between the citizens and the State. In this hue, he submitted that it was impermissible for the State to undertake the exercise of collection of bio-metric data, including fingerprints and storing at a central depository as it puts the State in an extremely dominant position in relation to the individual citizens. He also submitted that it will put the State in a position to target an individual and engage in surveillance thereby depriving or withholding the enjoyment of his rights and entitlements, which is totally impermissible in a country where governance of the State offounded on the concept of 'limited Government'. Again, this concept of limited government is.woven around Article 21 of the Constitution.

84Copy pinpoint84. Undoubtedly, we are in the era of liberalised democracy. In a democratic society governed by the Constitution, there is a strong trend towards the Constitutionalisation of democratic politics, wh\:fe the actions · of democratic elected GovernmenJ are judged in the light of the H

BINOY ViSWAM v. UNION OF INDIA & ORS. 89 [A. K. SIKRI, J.]

Constitution. In this context, judiciary assumes the role of protector of f the Constitution and democracy, being the ultimate arbi terin all matters involving the interpretation of the Constitution.

85Copy pinpoint85. Having said so, when it comes to exercising the power of judicial review of a legislation, the scope of such a power has to be kept in mind and the power is to be exercised within the limited sphere assigned B to the judiciary to undertake the judicial review. This has already been mentioned above. Therefore, unless the petitioner demonstrates that the Parliament, in enacting the impugned provision, has exceeded its • power prescribed in the Constitution or this provision violates any of the provision, the argument predicated on 'limited governance' will not succeed. One of the aforesaid ingredients needs lo be established by c the petitioners in order to succeed.

86Copy pinpoint86. Even in the case of Thakur Bharath Singh 43 relied upon by . Mr. Divan, wherein executive order wa·s passed imposing certain restrictions requiring the respondent therein to reside at a particular place as specified in the order, which was passed in exercise of powers D contained under Section 3(l)(b) of the M.P. Public Security Act, 1959, the Court struck down and quashed the order only after it found that restrictions contained therein were unreasonable and violative of fundamental freedom guaranteed under Article 19(l)(d) and (e) of the Constitution of India. E

87Copy pinpoint87. With this, we proceed to consider the arguments on which vires of the impugned provisions are questioned: Argument of Legislative Competence

88Copy pinpoint88. It is not denied by the petitioners that having regard to the provisions of Article 246 of the Constitution and Entries 82 and 97 of List I, the Parliament has requisite competence to enact the impugned legislation. However, the submission of the petitioners was that the impugned legislative provision was made as per which enrolment under Aadhaar had become mandatory for the income tax assessees, whereas this Court has passed various orders repeatedly emphasising that enrolment for Aadhaar card hag to be voluntary. On this basis, the· argument is that the Legislature lacked the authority to pass a law contrary to the judgments of this Court, without removing the basis of those judgments. It was also argued that evenAadhaar Act was voluntary in 43 Footnote 9 above H

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A nature and the basis of the judgments of this Court could be taken away only by making enrolment under the Aadhaar Act compulsory, which was not done.

89Copy pinpoint89. Before proceeding to discuss this argument, one aspect of the matter needs clarification. There was a debate as to whether Aadhaar B Act is voluntary or even that Act makes .:nrolment under Aadhaar mandatory.

90Copy pinpoint90. First thing that is to be kept in mind is that the Aadhaar Act is enacted to enable the Government to identify individuals for delivery of benefits, subsidies and services unde~ various welfare schemes. This is c so mentioned in Section 7 of the Aadhaar Act which states that proof of Aadhaar number is necessary for receipt of such subsidies, .benefits and services. At the same time, it cannot be disputed that once a person enrols himself and obtainsAadhaar number as mentioned in Section 3 of the Aadhaar Act,· such Aadhaar number. can be used for many other purposes. In fact, this Aadhaar nutnber becpmes the Unique Identity D (UID) of that person. Having said that, it is clear that there is no provision in Aadhaar Act which makes enrolment compulsory. May be for the purpose of obtaining benefits, proof ofAadhaar card is necessary as per Section 7 of the Act. Proviso to Section 7 stipulates that 'if an Aadhaar number is not assigned to enable an individual, he shall be offered alternate and viable means ofidentification for delivery of the subsidy, benefit 'or service. According to the petitioners, this proviso, with acknowledges alternate and viable means of identification, and therefore makes Aadhaar optional and voluntary and the enrolment is not necessary even for the purpose of receiving subsidies, benefits and services under various schemes of the Government. The respondents, however, interpret the proviso differently and there plea is that the words 'if an Aadhaar number is not assigned to an individual; deal with only that situation where application for Aadhaar has been made but for certain reasons _ Aadhaar number has not been assigned as it may take some time to give Aadhaar card. Therefore, this proviso is 011ly by way of an interim measure till Aadhaar number is assigned; which is otherwise compulsory for obtaining certain benefits as stated in Section 7 of the Aadhaar Act. Fact remains that as per the Government and UIDAI itself, the requirement of obtaining Aadhaar number is voluntary. It has been so claimed by UIDAI on its website and clarification to this effect has also been issued by UIDAI. H

BINOY VISWAM v. UNION o·F INpIA & ORS. 91 [A. K. SIKRI, J.]

91Copy pinpoint91. Thus, enrolment under Aadhaar is voluntary. However, it is a A moot question as to whether for obtaining benefits as prescribed under Section 7 of the Aadhaar Act, it i.s mandatory to give Aadhaar number or not is a debatable issue which we are not addressing as this very issue is squarely raised which is the subject matter of other writ petition filed and pending in this Court. B

92Copy pinpoint92. On the one hand, enrollment under Aadhaar card is voluntary, however, for the purposes oflncorrie Tax Ad, Section l 39AA makes it compulsory for the assessees to give Aadhaar number which means insofar as income tax assessees are concerned, they have to necessarily entoll themselves under the Aadhaar Act and obtiiin Aadhaar number · which will be their- identification number as .that has become the c requirement under the Income Tax Act:· .The contention that since enrollment under Aadhaar Act is voluntary, it cannot be compulsory under the Income Tax Act, cannot be countenanced. As already mentioned ·above, purpose for enrollment under the Aadhaar Act is to avail benefits of various welfare schemes etc. as stipulated in Section 7 oftheAadhaar D Act. Purpose behind Income Tax Act, on the other hand, is entirely different which has already been discussed in detail above. For achieving the said purpose, viz., to curb blackimongy, money laundering and tax evasion etc., ifthe 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 E Aadhaar Act, the provision is directory in nature. It is the prerogative of the Parliament to make a particular provision directory in one statute and mandatory/compulsory in other. That by itself cannot be a ground to question the competence of the legislature. After all, Aadhaar Act is not a mother Act. Two laws, i.e., Aadhaar Act, on the one hand, and law in the form of Section 139AA of the Income Tax Act, on the other hand, are two different stand alone provisions{laws and validity of one cannot b.e examined in the light ofprovisions of other Acts. In Municipal Corporation ofDelhi v. Shiv Shanket'14, if the objects of two statutory provisions are different and language of each statute is· restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the .surface. We reproduce hereunder the discussion to the aforesaid aspect contained in the said judgment: "(1971) 1 sec 442 H

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A "5 .... It is only when a consistent body oflaw cannot- be maintained without abrogation of the previous law that the plea of implied repeal should be sustained. To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning and effect both of the earlier and the later statute. Until this is done it B cannot be satisfactorily ascertained if any fatal inconsistency exists between them. The meaning, scope and effect of the two statutes, as discovered on scrutiny, determirtes the legislative intent as to whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are different and the c . language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict, should also, so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an irreconcilable conflict between the new provision and the prior statilte relating to the same subfect-matter, that the former, being the later expression of the legislature, may be held to prevail, the prior~aw yielding to the extent of the conflict. The same rule ofirreconcilable repugnancy controls implied repeal of a general by a special statute. The subsequent provision treating a phase of the same general subject-matter.in a more minute way may be intended to imply repeal protanto of the repugnant general provision with which it cannot reasonably co-exist. When there is no inconsistency between the general and the special statutethe later may well be construed as supplementary." F

93Copy pinpoint93. In view or'the above, we are riot impressed by the contention 6f the petitioners that the two enactments are contradictory with each other. A harmonious reading of the two enactments would clearly suggests that whereas enrollment ofAadhaaar is voluntary when it comes to taking benefits of various welfare schemes even if it is presumed that G requirement of Section 7 of Aadhaar Act that it is necessary to provide Aadhaar number to avail the benefits of schemes and services, it is upto a person to avail those benefits or not. On the other hand, purpose · behind enacting Section' I 39AA is to check a menace ofblack money as well as money laundering and also to widen the income tax net so as to H

BINOY VISWAM v. UNION OF INDIA & ORS. 93 {A. K. SIKRI, J.]

cover those persons who are evading the payment of tax. A

94Copy pinpoint94. Main emphasis, however, is on the plea that Parliament or any State legislature cannot pass a law that overrules a judgment thereby nullifying the said decision, that too without removing the basis of the decision. This argument appears to be attractive inasmuch as few orders are passed by this Court in pending writ petitions which are.to the effect that the enrollment of Aadhaar would be voluntary. However, it needs to be kept in mind that the orders have been passed in the petitions where Aadhaar scheme floated as an executive/administrative measure has been challenged. In those cases, the said orders are not passed in a case where the Court was dealing with a statute passed by the Parliament. Further, these an: interim orders as the Court was of the opinion that till the matter is decided finally in the context of Right to Privacy issue, the implementation of the said Aadhaar scheme would remain voluntary. In fact, the main issue as to whether Aadhaar card scheme whereby biometrjc data of an individual is collected violates Right to Privacy and, therefore, is offensive of Article 21 of the D Constitution or not is yet to be decided. In the process; the Constitution Bench is also called upon to decide as to whether Right to Privacy is a · part of Article 21 of the Constitution at all. Therefore, no final decision has been taken. In a situation like this, it cannot be said that Parliament is precluded from or it is rendered incompetent to pass such a law. That apart, the argumept of the petitioners is that the basis on which the E aforesaid orders are passed has to be removed, which is not done. According to the petitioners, it could be done only by making Aadhaar Act compulsory. It is difficult to accept this contention for two.reasons: first, when the orders passed by this Court which are relied upon by the petitioners were passed when· Aadhaar Act was not even enacted. . F Secondly, as already discussed in detail above, Aadhaar Act and the 1aw contained in Section l 39AA of the Income Tax Act deal with two different situations and operate in different fields. This argument oflegislature inc~mpetence also, therefore, has fails.

Whether Section 139AA of the Act is discriminatory and G · offends Article 14 of the Constitution of India?. • Article 14, which enshrines the principle of equality as a fundamental right mandates that th.e State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.. It, thus, gives the right to equal tre.atment in similar H

94 SUPREME COURT REPORTS [2017) 7 S..C.R.

A circumstances, both in privileges conferred and in the liabilities imposed. In Sri Srinavasa Theatre & Ors. v. Government of Tamil Nadu & Ors. 45 , this Court explained that the two expressions. 'equality before law' and 'eqii!ll protection of law' do not mean the same thing even if there may be much in common between them. "Equality before law" is · a dynamic concept having many facets. One facet is that there shall be no privileged person pr class and that one shall be above law. Another facet is "the obligation upon the State to bring about, through the machinery oflaw, a more eq\1al society... For, equality before law can be predicated meaningfully only in an equal society... ". The Court further observed that Article 14 prescribes equality before law. ·But the fact remains that all persons are not equal by nature, attainment or circumstances, and, therefore, a mechanical equality before the law may result in injustice. Thus, the guarantee against the denial of equal protection of the law does not mean that identically the same mies of law should be made applicable to all persons in spite of difference in circumstances or conditions {See C!tiranjit Lal Clrowdlmriv. Union ofIndia & Ors. 46 }.

95Copy pinpoint95. The ·varying needs of different classes or sections of people require differential and separate treatment. The Legislature is required to deal with diverse problems arising out of an infiniti: variety of human relations. It must, therefore, necessarily have the power of making laws to attain particular objects and, for that purpose, of distinguishing, selecting E . and classifying persons. and things upon which its laws are to operate. The principle ofequality oflaw, thus, means not that the same law should apply to everyone but that a law should deal alike with all in one class; that there should be an equality of treatment under equal circumstances. It means "that equals should not be treated unlike and unlikes should not F be treated alike. Likes should be treated alike. · ~-

96Copy pinpoint96. What follows is that Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transactions by the Legislature for the purpose of achieving specific ends. Classification to be reasonable should fulfil the following two tests: G ( 1) It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped . together in the class from others left out of it. 4 ' (1992) 2 $CC 643 46 H 1950 SCR 869

BINOY VISWAM v. UNION OF INDIA & ORS. 95 [A. K. SIKRI, J.]

(2) The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question. Thus, Article 14 in its ambit and sweep involves two facets, viz., it permits reasonable classification which is founded on intelligible differentia and accommodates the practical needs of the society and the differential must have a rational relation to the objects sought to be achieved. Further, it does not allow any kind of arbitrariness and ensures fairness and equality of treatment. It is the fonjuris of our Constitution, the fountainhead of justice. Differential treatment does not per se amount to violation ofArticle 14 of the Constitution and it violates Article 14 only when there is no reasonable basis and there are several tests to decide c whether a classification is reasonable or not and one_ofthe tests will be as to whether it is conducive to the functioning of modern society.

97Copy pinpoint97. Insofar as the impugned provision is concerned, Mr. Datar had conceded that fi'rst_:test that of reasonable classification had been satisfied as he conceded that individual assesses form a separate class D and the impugned provision which targeted only individual assesses would not be discriminatory on this ground. His whole emphasis was that Section 139AA did not satisfy the second limb of the twin tests of classification as, according to him, this provision had no rational nexus with the object sought to be achieved. E

98Copy pinpoint98. In this behalf, his submission was that if the purpose of the provision was to curb circulation of black money, such an object was not achievable by seeing PAN with Aadhaar inasmuch as Aadhaar is only for individuals. His submission was that it is only the individuals who are responsible for generating black money or money laundering. This was F the basis for Mr. Datar's submission. We find it somewhat difficult to accept such a submission.

99Copy pinpoint99. Unearthing black money or checking money laundering is to be achieved to whatever extent possible. Various measures can be taken in this behalf. If one of the measures is introduction of Aadhaar G into the tax regime, it cannot be denounced only because of the reason that the purpose would not be achieved fully. Such kind of menace, which is deep rooted, needs to be tackled by taking multiple actions and those actions may be initiated at the same time. It is 'the combined effect of these actions which may yield results and each individual action H

96 SUPREME COURT REPORTS [2017] 7 S.C.R.

A considered in isolation may not be sufficient. Therefore, rationality of a particular measure cannot be challenged on the ground that it has no nexus with the objecti_\Te to be achieved. Of course, there is a definite objective. For this purpose alone, individual measure cannot be ridiculed. We have already taken note of the recommendations of SIT on black money headed by Justice M.B. Shah. We have also reproduced the B measures suggested by the committee headed by Chairman, CBDT on 'Measures to tackle black money in India and Abroad'. They have, in no uncertain terms, suggested that one singular proof of identity of a person for entering into finance/business transactions etc may go a long way in curbing this foul practice. That apart, even if solitary purpose of c de-duplication of PAN cards is taken into consideration, that may be sufficient to meet the second test of Article 14. It has come on record that 11.3-5 lakhs cases of duplicate PAN or fraudulent PAN cards have already been detected and out of this 10,52 lakh cases pertain to individual assessees. Seeding of Aadhaar with PAN has certain benefits which have already been enumerated. Furthermore, even when we address the issue of shell companies, fact remains that companies are after all floated by individuals and these individuals have to produce documents to show their identity. It was sought to be argued that persons found with duplicate/bogus PAN cards are hardly 0.4% and, therefore, there was no need to have such a provision. We cannot go by percentage figures. The absolute number of such cases is 10.52 lakh, which figure, by no means, can be termed as miniscule, to harm the economy and create adverse effect on the nation. Respondents have argued that Aadhaar will ensure that there is no duplication of identity as bio-metric will not allow that and, therefore, it may check the growth of shell companies as well. F

100Copy pinpoint100. Having regard to the aforesaid factors, it cannot be said that there is no nexus with the objective. sought to be achieved. l 01. Another argument predicated on Article 14 advanced by Mr. Divan was that it was discriminatory in nature as i't created two classes; G one class of those who volunteered to enrol themselves under Aadhaar scheme and other class of those who did not want it to be so. It was further submitted that in this manner this provision had the effect of creating an artificial class of those who object to Aadhaar scheme as selfconscious persons. This is a fallacious argument.

BINOY VISWAM v. UNION OF INDIA & ORS. 97 [A. K. SIKRI, J.]

102Copy pinpoint102. Validity of a legislative act cannot be challenged by creating A artificial classes by those who are objecting to the said provision and predicating the argument of discrimination on that basis. When a law is made, all those who are covered by that law are supposed to follow the same. No doubt, it is the right of a citizen to approach the Court and question the constitutional validity of a particular law enacted by the B Legislature. However, merely because a section of persons opposes the law, would not mean that it has become a separate class by itself. Two classes, cannot be created on this basis, namely, one of those who want to be covered by the scheme, and others who do not want to be covered thereby. If such a proposition is accepted, every legislation would be prone to challenge on the ground of discrimination. As far as c plea of discrimination is concerned, it has to be raised by showing that the impugned law creates two classes without any reasonable classification and treats them differently.

103Copy pinpoint103. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances, in the same position, as the varying needs of different classes of persons often require separate treatment. It is permissible for the State to classify persons for legitimate purposes. The Legislature is also competent to exercise its discretion and make classification. In the present scenario the impugned legislation has created two classes, i.e. one class of those persons who are assessees and other class of those persons who are income tax assessees. It is because of the reason that the impugned provision is applicable only to those who are filing income tax returns: Therefore, the only question would be as to whether this classification is reasonable or not. There catmot be any dispute that there is a reasonable basis for differentiation and, therefore, ·F equal protection clause enshrii:ied in Article 14 is not attracted: What Article 14 prohibits is class legislation and not reasonable classification for the purpose of legislation. All income tax asessees constitute one class and they are treated alike by the impugned provision.

104Copy pinpoint104. It may also be pointed out that the counsel for the respondents G had argued that doctrine of proportionality cannot be read into Article 14 of the Constitution and in support reliance has been placed on the judgment of this Court in E.P. Royappa v. State of Tamil Nadu & Anr. 47 • This aspect need not be considered in detail inasmuch as "(1974) 4 sec 3 H

98 SUPREME COURT REPORTS [2017] 7 S.C.R.

A Mr. Datar, learned counsel appearing for the petitioner, had conceded at the Bar that he had invoked the doctrine of proportionality only in the context of Article 19( 1)(g).

105Copy pinpoint105. We, therefore, reject the argument founded on Article 14 of the Constitution. B Whether impugned provision is violative of Article 19(1)(g)

106Copy pinpoint106. lnvocation of provisions ofArticle l 9(l)(g) of the Constitution . by the petitioners was in the context of proviso to sub-section (2) of Section J39AA of the Act which contains the consequences of the failure to intimate theAadhaarnumber to such authority in such form and manner as may be prescribed and reads as under: "(2) Every person who has been allotted permanent account number as on the l '' day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette: Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number."

107Copy pinpoint107. The submission was that the aforesaid penal consequence was draconian in nature and totally disproportionate to the non-compliance of provisions contained in Section 139AA. It was pointed out that persons effected by Section 139AA are only individuals, i.e. natural persons and not legal/artificial personalities like companies, trusts, partnership firms, etc. Thus, individuals who are professionals like lawyers, doctors, architects and lakhs of businessmen having small or micro enterprises are going to suffer such a serious consequence for failure to intimate G Aadhaar number to the designated authority. According to him, consequence of not having a PAN card results in a virtual 'civil death' as one example given was that under Rule 1148 of the Rules, it will not be possible to operate bank accounts with transaction above Rs.50,000/ - or to use credit/debit cards or purchase motor vehicles or property etc. I 08. St:ction l 39A deals with PAN. Sub-section (I) thereof H

BINOY VISWAM v. UNION OF INDIA & ORS. 99 [A. K. SIKRI, J.]

requires four classes of persons to have the PAN allotted. It reads as A under: "139A. Permanent account number. - (1) Every person, - (i) if his total income or the total income of any other person in respect of which he is assessable under this Act during any previous year exceeded the maximum amount which is not chargeable to · 8 income-tax; or (ii) carrying on any business or profession wh0se total sales, turnover or gross receipts are or is likely to exceed five lakh rupees in any previous year; or c (iii) who is required to furnish a return ofincome under sub-section (4A) of section 139; or (iv) being an employer, who is required to furnish a return of fringe benefits under section l lSWD. and who has not been allotted a permanent account number shall, D within such time, as may be prescribed, apply to the Assessing Officer for the allotment of a permanent account number." 109 .. This PAN number has to be mentioned/quoted in number of eventualities specified under sub-section (S), (SA), (SB), (SC), S(D) and sub-section (6) of Section 139A. These provisions read as under: E "S. Every person shall - (a) quote such number in all his returns to, or correspondence with, any income-tax authority; (b) quote such number in all challans for the payment ofany sum due under this Act; (c) quote such number in all documents pertaining to such transactions as may be prescribed by the Board in the interests of the revenue, and entered into by him: Provided that the Board may prescribe different dates for different transactions or class of transactions or for different class of persons: Provided further that a person shall quote General Index Register Number till such time Permanent Account Number is allotted to H