Binoy Viswam v. Union of India & Ors
[Citation -2017-LL-0609-24]

Citation 2017-LL-0609-24
Appellant Name Binoy Viswam
Respondent Name Union of India & Ors.
Court SUPREME COURT
Relevant Act Income-tax
Date of Order 09/06/2017
Judgment View Judgment
Keyword Tags permanent account number • constitutional validity • national interest • public interest • black money • aadhaar number


REPORTABLE IN SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 247 OF 2017 BINOY VISWAM .....PETITIONER(S) VERSUS UNION OF INDIA & ORS. .....RESPONDENT(S) WITH WRIT PETITION (CIVIL) NO. 277 OF 2017 AND WRIT PETITION (CIVIL) NO. 304 OF 2017 JUDGMENT A.K. SIKRI, J. In these three writ petitions filed by petitioners, who claim themselves to be pubic spirited persons, challenge is laid to constitutional validity of Section 139AA of Income Tax Act, 1961 (hereinafter referred to as Act ), which provision has Signature Not Verified been inserted by amendment to said Act vide Finance Act, Digitally signed by SATISH KUMAR YADAV Date: 2017.06.09 17:05:25 TLT Reason: 2017. Section 139AA of Act reads as under: Writ Petition (Civil) No. 247 of 2017 & Ors. Page 1 Quoting of Aadhaar number. (1) Every person who is eligible to obtain Aadhaar number shall, on or after 1st day of July, 2017, quote Aadhaar number (i) in application form for allotment of permanent account number; (ii) in return of income: Provided that where person does not possess Aadhaar Number, Enrolment ID of Aadhaar application form issued to him at time of enrolment shall be quoted in application for permanent account number or, as case may be, in return of income furnished by him. (2) Every person who has been allotted permanent account number as on 1st 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 date to be notified by Central Government in Official Gazette: Provided that in case of failure to intimate Aadhaar number, permanent account number allotted to person shall be deemed to be invalid and other provisions of this Act shall apply, as if person had not applied for allotment of permanent account number. (3) provisions of this section shall not apply to such person or class or classes of persons or any State or part of any State, as may be notified by Central Government in this behalf, in Official Gazette. Explanation. For purposes of this section, expressions (i) Aadhaar number , Enrolment and resident shall have same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (18 of 2016); Writ Petition (Civil) No. 247 of 2017 & Ors. Page 2 (ii) Enrolment ID means 28 digit Enrolment Identification Number issued to resident at time of enrolment. 2) Even cursory look at aforesaid provision makes it clear that in application forms for allotment of Permanent Account Number (for short, PAN ) as well as in income-tax returns, assessee is obliged to quote Aadhaar number. This is necessitated on any such applications for PAN or return of income on or after July 01, 2017, which means from that date quoting of Aadhaar number for aforesaid purposes becomes essential. Proviso to sub-section (1) gives relaxation from quoting Aadhaar number to those persons who do not possess Aadhaar number but have already applied for issuance of Aadhaar card. In their cases, Enrolment ID of Aadhaar application form is to be quoted. It would mean that those who would not be possessing Aadhaar card as on July 01, 2017 may have to necessarily apply for enrolment of Aadhaar before July 01, 2017. 3) effect of this provision, thus, is that every person who desires to obtain PAN card or who is assessee has to necessarily enrol for Aadhaar. It makes obtaining of Aadhaar card compulsory for those persons who are income-tax assessees. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 3 Proviso to sub-section (2) of Section 139AA of Act stipulates consequences of failure to intimate Aadhaar number. In those cases, PAN allotted to such persons would become invalid not only from July 01, 2017, but from its inception as deeming provision in this proviso mentions that PAN would be invalid as if person had not applied for allotment of PAN, i.e. from very beginning. Sub-section (3), however, gives discretion to Central Government to exempt such person or class or classes of persons or any State or part of any State from requirement of quoting Aadhaar number in application form for PAN or in return of income. challenge is to this compulsive nature of provision inasmuch as with introduction of aforesaid provision, no discretion is left with income-tax assessees insofar as enrolment under Aadhaar (Targeting Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as Aadhaar Act ) is concerned. According to petitioners, though Aadhaar Act prescribes that enrolment under said Act is voluntary and gives choice to person to enrol or not to enrol himself and obtain Aadhaar card, this compulsive element thrusted in Section 139AA of Act makes said provision unconstitutional. basis on which petitioners so Writ Petition (Civil) No. 247 of 2017 & Ors. Page 4 contend would be taken note of at appropriate stage. Purpose of these introductory remarks was to highlight issue involved in these writ petitions at threshold. 4) Before we take note of arguments advanced by petitioners and rebuttal thereof by respondents, it would be in fitness of things to take stock of historical facts pertaining to Aadhaar scheme and what Aadhaar enrolment amounts to. Aadhaar Scheme and its administrative and statutory framework 5) Respondent No.1, Union of India, through Planning Commission, issued Notification dated January 28, 2009, constituting Unique Identification Authority of India (for short, UIDAI ) for purpose of implementing of Unique Identity (UID) scheme wherein UID database was to be collected from residents of India. Pursuant to said Notification, Government of India appointed Shri Nandan Nilekhani, entrepreneur, as Chairman of UIDAI on July 02, 2009. According to this scheme, every citizen of India is entitled to enrol herself/himself with it and get unique, randomnly selected 12 digit number. For such enrolment, every person so intending would have to provide his/her personal information along with Writ Petition (Civil) No. 247 of 2017 & Ors. Page 5 biometric details such fingerprints and iris scan for future identification. Accordingly, it is intended to create centralized database under UIDAI with all above information. scheme was launched in September 2010 in rural areas of Maharashtra and thereafter extended all over India. One of objects of entire project was non-duplication and elimination of fake identity cards. 6) On December 03, 2010, National Identification Authority of India Bill, 2010 was introduced in Rajya Sabha. On December 13, 2011, Standing Committee Report was submitted to Parliament stating that both Bill and project should be re-considered. Parliamentary Standing Committee on Finance rejected Bill of 2010 as there was opposition to passing of aforesaid Bill by Parliament. Be that as it may, said Bill of 2010 did not get through. result was that as on that date, Aadhaar Scheme was not having any statutory backing but was launched and continued to operate in exercise of executive power of Government. It may also be mentioned that Government appointed private enrollers and these private collection/enrolment centres run by private parties continued to enrol citizens under UID scheme. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 6 7) Writ Petition (Civil) No. 494 of 2012, under Article 32 of Constitution of India, was preferred by Justice K.S. Puttuswamy, former Judge of Karnataka High Court before this Court, challenging UID scheme stating therein that same does not have any statutory basis and it violated Right to Privacy , which is facet of Article 21 of Constitution. This Court decided to consider plea raised in said writ petition and issued notice. Vide order dated September 23, 2013, Court also passed following directions: In meanwhile, no person should suffer for not getting Aadhaar card in spite of fact that some authority had issued circular making it mandatory and when any person applies to get Aadhaar Card voluntarily, it may be checked whether that person is entitled for it under law and it should not be given to any illegal immigrant. In meanwhile, various writ petitions were filed by public spirited citizens and organisations challenging validity of Aadhaar scheme and this Court has tagged all those petitions along with Writ Petition (Civil) No. 494 of 2012. 8) In meantime, in some proceedings before Bombay High Court, said High Court passed orders requiring UIDAI to provide biometric information to CBI for investigation purposes with respect to criminal trial. This order was challenged by Writ Petition (Civil) No. 247 of 2017 & Ors. Page 7 UIDAI by filing Special Leave Petition (Criminal) No. 2524 of 2014, in which orders dated March 24, 2014 were passed by this Court restraining UIDAI from transferring any biometric information to any agency without written consent of concerned individual. said order is in following terms: In meanwhile, present petitioner is restrained from transferring any biometric information of any person who has been allotted Aadhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All authorities are directed to modify their forms/circulars/likes so as to not compulsorily require Aadhaar number in order to meet requirement of interim order passed by this Court forthwith. 9) Thereafter, aforesaid writ petitions and special leave petitions were taken up together. Matter was heard at length by three Judges Bench of this Court and detailed arguments were advanced by various counsel appearing for petitioners as well as Attorney General for India who appeared on behalf of Union of India. As stated above, one of main grounds of attack on Aadhaar Card scheme was that very collection of biometric data is violative of Right to Privacy , which, in turn, violated not only Article 21 of Constitution of India but other Articles embodying fundamental rights guaranteed under Part Writ Petition (Civil) No. 247 of 2017 & Ors. Page 8 III of Constitution. This argument was sought to be rebutted by respondents with submission that in view of eight Judges Bench judgment of this Court in M.P. Sharma & Ors. v. Satish Chandra & Ors.1 and that of six Judges Bench in Kharak Singh v. State of U.P. & Ors.2, legal position regarding existence of fundamental Right to Privacy is doubtful. At same time, it was also accepted that subsequently smaller Benches of two or three Judges of this Court had given judgments recognising Right to Privacy as part of Article 21 of Constitution. On that basis, respondents submitted that matters were required to be heard by Larger Bench to debate important questions like: (i) Whether there is any Right to Privacy guaranteed under Constitution; and (ii) If such Right exists, what is source and what are contours of such Right as there is no express provision in Constitution adumbrating Right to Privacy. 10) Though, this suggestion of respondents were opposed by counsel for petitioners, said Bench still deemed it proper to refer matter to Larger Bench and reasons for taking this course of action are mentioned in paras 12 and 13 of 1 AIR 1954 SC 300 2 AIR 1963 SC 1295 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 9 order dated August 11, 2015 which reads as under: 12. We are of opinion that cases on hand raise far reaching questions of importance involving interpretation of Constitution. What is at stake is amplitude of fundamental rights including that precious and inalienable right under Article 21. If observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as law of this country, fundamental rights guaranteed under Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At same time, we are also of opinion that institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by smaller Benches without appropriately explaining reasons for not following pronouncements made by such larger Benches. With due respect to all learned Judges who rendered subsequent judgments where right to privacy is asserted or referred to their Lordships concern for liberty of human beings, we are of humble opinion that there appears to be certain amount of apparent unresolved contradiction in law declared by this Court. 13. Therefore, in our opinion to give quietus to kind of controversy raised in this batch of cases once for all, it is better that ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and jurisprudential correctness of subsequent decisions of this Court where right to privacy is either asserted or referred be examined and authoritatively decided by Bench of appropriate strength. (emphasis supplied) 11) While referring matter as aforesaid, by another order of even date, Bench expressed that it would be desirable that matter be heard at earliest. On same day, yet another order was passed by Bench in those petitions giving certain Writ Petition (Civil) No. 247 of 2017 & Ors. Page 10 interim directions which would prevail till matter is finally decided by Larger Bench. We would like to reproduce this order containing said interim arrangement in toto: I N T E R I M O R D E R After matter was referred for decision by larger Bench, learned counsel for petitioners prayed for further interim orders. last interim order in force is order of this Court dated 23.9.2013 which reads as follows:- All matters require to be heard finally. List all matters for final hearing after Constitution Bench is over. In meanwhile, no person should suffer for not getting Aadhaar card inspite of fact that some authority had issued circular making it mandatory and when any person applies to get Aadhaar card voluntarily, it may be checked whether that person is entitled for it under law and it should not be given to any illegal immigrant. It was submitted by Shri Shyam Divan, learned counsel for petitioners that petitioners having pointed out serious breach of privacy in their submissions, preceding reference, this Court may grant injunction restraining authorities from proceeding further in matter of obtaining biometrics etc. for Aadhaar card. Shri Shyam Divan submitted that biometric information of individual can be circulated to other authorities or corporate bodies which, in turn can be used by them for commercial exploitation and, therefore, must be stopped. learned Attorney General pointed out, on other hand, that this Court has at no point of time, even while making interim order dated 23.9.2013 granted injunction restraining Unique Identification Authority of India from going ahead and obtaining biometric or other information from citizen Writ Petition (Civil) No. 247 of 2017 & Ors. Page 11 for purpose of Unique Identification Number, better known as Aadhaar card . It was further submitted that respondents have gone ahead with project and have issued Aadhaar cards to about 90% of population. Also that large amount of money has been spent by Union Government on this project for issuing Aadhaar cards and that in circumstances, none of well-known consideration for grant of injunction are in favour of petitioners. learned Attorney General stated that respondents do not share any personal information of Aadhaar card holder through biometrics or otherwise with any other person or authority. This statement allays apprehension for now, that there is widespread breach of privacy of those to whom Aadhaar card has been issued. It was further contended on behalf of petitioners that there still is breach of privacy. This is matter which need not be gone into further at this stage. learned Attorney General has further submitted that Aadhaar card is of great benefit since it ensures effective implementation of several social benefit schemes of Government like MGNREGA, distribution of food, ration and kerosene through PDS system and grant of subsidies in distribution of LPG. It was, therefore, submitted that restraining respondents from issuing further Aadhaar cards or fully utilising existing Aadhaar cards for social schemes of Government should be allowed. learned Attorney General further stated that respondent Union of India would ensure that Aadhaar cards would only be issued on consensual basis after informing public at large about fact that preparation of Aadhaar card involving parting of biometric information of individual, which shall however not be used for any purpose other than social benefit schemes. Having considered matter, we are of view that balance of interest would be best served, till matter is finally decided by larger Bench if Union of India or UIDA proceed in following manner:- Writ Petition (Civil) No. 247 of 2017 & Ors. Page 12 1. Union of India shall give wide publicity in electronic and print media including radio and television networks that it is not mandatory for citizen to obtain Aadhaar card; 2. production of Aadhaar card will not be condition for obtaining any benefits otherwise due to citizen; 3. Unique Identification Number or Aadhaar card will not be used by respondents for any purpose other than PDS Scheme and in particular for purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. Aadhaar card may also be used for purpose of LPG Distribution Scheme; 4. information about individual obtained by Unique Identification Authority of India while issuing Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by Court for purpose of criminal investigation. Ordered accordingly. 12) In nutshell, direction is that obtaining Aadhaar Card is not mandatory and benefits due to citizen under any scheme are not to be denied in absence of Aadhaar Card. Further, unique identification number or Aadhaar Card was to be used only for PDS Scheme and, in particular, for purpose of distribution of food grains etc. and cooking fuels such as Kerosene and LPG Distribution Scheme, with clear mandate that it will not be used by respondents for any other purpose. Even information about individual collected while issuing Writ Petition (Civil) No. 247 of 2017 & Ors. Page 13 Aadhaar Card was not to be used for any other purpose, except when it is directed by Court for purpose of criminal investigation. Thus, making of Aadhaar Card was not to be made mandatory and it was to be used only for PDS Scheme and LPG Distribution Scheme. Thereafter, certain applications for modification of aforesaid order dated August 11, 2015 was filed before this Court by Union of India and five Judges Bench of this Court was pleased to pass following order: 3. After hearing learned Attorney General for India and other learned senior counsels, we are of view that in paragraph 3 of Order dated August 11, 2015, if we add, apart from other two Schemes, namely, PDS Scheme and LPG Distribution Scheme, Schemes like Mahatma Gandhi National Rural Employment Guarantee Scheme 12 (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister s Jan Dhan Yojana (PMJDY) and Employees Provident Fund Organisation (EPFO) for present, it would not dilute earlier order passed by this Court. Therefore, we now include aforesaid Schemes apart from other two Schemes that this Court has permitted in its earlier order dated August 11, 2015. 4. We impress upon Union of India that it shall strictly follow all earlier orders passed by this Court commencing from September 23, 2013. 5. We will also make it clear that Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till matter is finally decided by this Court one way or other. Thus, Aadhaar is permitted for some more schemes as well. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 14 13) petitioner herein, laying stress on above orders, plead that from perusal of various interim orders passed by this Court it is amply clear that Court has reiterated position that although there is no interim order against collection of information from citizens for purpose of enrolment for Aadhaar, scheme is purely voluntary and same is not to be made mandatory by Government. 14) While matters stood thus, Government of India brought in legislation to govern Aadhaar Scheme with enactment of Aadhaar (Targeted Delivery of Financial and other subsidies, benefits and services) Act, 2016 (hereinafter referred to as Aadhaar Act ). 15) Introduction to said Act gives reasons for passing that Act and Statement of Objects and Reasons mention objectives sought to be achieved with enactment of Aadhaar Act. Introduction reads as under: Unique Identification Authority of India was established by resolution of Government of India in 2009. It was meant primarily to lay down policies and to implement Unique Identification Scheme, by which residents of India were to be provided unique identity number. This number would serve as proof of identity and could be used for identification of beneficiaries for transfer of benefits, subsidies, services and other purposes. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 15 Later on, it was felt that process of enrolment, authentication, security, confidentiality and use of Aadhaar related information be made statutory so as to facilitate use of Aadhaar number for delivery of various benefits, subsidies and services, expenditures of which were incurred from or receipts therefrom formed part of Consolidated Fund of India. Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 inter alia, provides for establishment of Unique Identification Authority of India, issuance of Aadhaar number to individuals, maintenance and updating of information in Central Identities Data Repository, issues pertaining to security, privacy and confidentiality of information as well as offences and penalties for contravention of relevant statutory provisions. 16) In Statement of Objects and Reasons, it is inter alia mentioned that though number of social benefits schemes have been floated by Government, failure to establish identity of individual has proved to be major hindrance for successful implementation of those programmes as it was becoming difficult to ensure that subsidies, benefits and services reach unintended beneficiaries in absence of credible system to authenticate identity of beneficiaries. Statement of Objects and Reasons also discloses that over period of time, use of Aadhaar Number has been increased manifold and, therefore, it is also necessary to take measures relating to ensuring security of information provided by individuals while enrolling for Aadhaar Card. Having these parameters in mind, para 5 of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 16 Statement of Objects and Reasons enumerates objectives which Aadhaar Act seeks to achieve. It reads as under: 5. Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 inter alia, seeks to provide for (a) issue of Aadhaar numbers to individuals on providing his demographic and biometric information to Unique Identification Authority of India; (b) requiring Aadhaar numbers for identifying individual for delivery of benefits, subsidies, and services expenditure is incurred from or receipt therefrom forms part of Consolidated Fund of India; (c) authentication of Aadhaar number of Aadhaar number holder in relation to his demographic and biometric information; (d) establishment of Unique Identification Authority of India consisting of Chairperson, two Members and Member-Secretary to perform functions in pursuance of objectives above; (e) maintenance and updating information of individuals in Central Identities Date Repository in such manner as may be specified by regulations; (f) measures pertaining to security, privacy and confidentiality of information in possession or control of Authority including information stored in Central Identities Date Repository; and (g) offences and penalties for contravention of relevant statutory provisions. 17) Some of provisions of this Act, which have bearing on Writ Petition (Civil) No. 247 of 2017 & Ors. Page 17 matter that is being dealt with herein, may be taken note of. Sections 2(a), 2(c), 2(d), 2(e), 2(g), 2(h), 2(k), 2(l), 2(m), 2(n), Section 3, Section 7, Section 28, Section 29 and Section 30 reads as under: 2(a) "Aadhaar number" means identification number issued to individual under sub-section (3) of section 3; xxx xxx xxx 2(c) "authentication" means process by which Aadhaar number alongwith demographic information or biometric information of individual is submitted to Central Identities Data Repository for its verification and such Repository verifies correctness, or lack thereof, on basis of information available with it; 2(d) "authentication record" means record of time of authentication and identity of requesting entity and response provided by Authority thereto; 2(e) "Authority" means Unique Identification Authority of India established under sub-section (1) of section 11; xxx xxx xxx 2(g) "biometric information" means photograph, finger print, Iris scan, or such other biological attributes of individual as may be specified by regulations; 2(h) "Central Identities Data Repository" means centralised database in one or more locations containing all Aadhaar numbers issued to Aadhaar number holders along with corresponding demographic information and biometric information of such individuals and other information related thereto; xxx xxx xxx Writ Petition (Civil) No. 247 of 2017 & Ors. Page 18 2(k) "demographic information" includes information relating to name, date of birth, address and other relevant information of individual, as may be specified by regulations for purpose of issuing Aadhaar number, but shall not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history; 2(l) "enrolling agency" means agency appointed by Authority or Registrar, as case may be, for collecting demographic and biometric information of individuals under this Act; 2(m) "enrolment" means process, as may be specified by regulations, to collect demographic and biometric information from individuals by enrolling agencies for purpose of issuing Aadhaar numbers to such individuals under this Act; 2(n) "identity information" in respect of individual, includes his Aadhaar number, his biometric information and his demographic information; 3. Aadhaar number. - (1) Every resident shall be entitled to obtain Aadhaar number by submitting his demographic information and biometric information by undergoing process of enrolment: Provided that Central Government may, from time to time, notify such other category of individuals who may be entitled to obtain Aadhaar number. (2) enrolling agency shall, at time of enrolment, inform individual undergoing enrolment of following details in such manner as may be specified by regulations, namely: (a) manner in which information shall be used; (b) nature of recipients with whom information is intended to be shared during authentication; and (c) existence of right to access information, procedure for making requests for such Writ Petition (Civil) No. 247 of 2017 & Ors. Page 19 access, and details of person or department in-charge to whom such requests can be made. (3) On receipt of demographic information and biometric information under sub-section (1), Authority shall, after verifying information, in such manner as may be specified by regulations, issue Aadhaar number to such individual. xxx xxx xxx 7. Proof of Aadhaar number necessary for receipt of certain subseidies, benefits and services, etc. - Central Government or, as case may be, State Government may, for purpose of establishing identity of individual as condition for receipt of subsidy, benefit or service for which expenditure is incurred from, or receipt therefrom forms part of, Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in case of individual to whom no Aadhaar number has been assigned, such individual makes application for enrolment: Provided that if Aadhaar number is not assigned to individual, individual shall be offered alternate and viable means of identification for delivery of subsidy, benefit or service. xxx xxx xxx 28. Security and confidentiality of information - (1) Authority shall ensure security of identity information and authentication records of individuals. (2) Subject to provisions of this Act, Authority shall ensure confidentiality of identity information and authentication records of individuals. (3) Authority shall take all necessary measures to ensure that information in possession or control of Authority, including information stored in Central Identities Data Repository, is secured and protected against access, use or disclosure not permitted under this Act or regulations made Writ Petition (Civil) No. 247 of 2017 & Ors. Page 20 thereunder, and against accidental or intentional destruction, loss or damage. (4) Without prejudice to sub-sections (1) and (2), Authority shall (a) adopt and implement appropriate technical and organisational security measures; (b) ensure that agencies, consultants, advisors or other persons appointed or engaged for performing any function of Authority under this Act, have in place appropriate technical and organisational security measures for information; and (c) ensure that agreements or arrangements entered into with such agencies, consultants, advisors or other persons, impose obligations equivalent to those imposed on Authority under this Act, and require such agencies, consultants, advisors and other persons to act only on instructions from Authority. (5) Notwithstanding anything contained in any other law for time being in force, and save as otherwise provided in this Act, Authority or any of its officers or other employees or any agency that maintains Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in Central Identities Data Repository or authentication record to anyone: Provided that Aadhaar number holder may request Authority to provide access to his identity information excluding his core biometric information in such manner as may be specified by regulations. 29. Restriction on sharing information. - (1) No core biometric information, collected or created under this Act, shall be (a) shared with anyone for any reason whatsoever; or (b) used for any purpose other than generation Writ Petition (Civil) No. 247 of 2017 & Ors. Page 21 of Aadhaar numbers and authentication under this Act. (2) identity information, other than core biometric information, collected or created under this Act may be shared only in accordance with provisions of this Act and in such manner as may be specified by regulations. (3) No identity information available with requesting entity shall be (a) used for any purpose, other than that specified to individual at time of submitting any identity information for authentication; or (b) disclosed further, except with prior consent of individual to whom such information relates. (4) No Aadhaar number or core biometric information collected or created under this Act in respect of Aadhaar number holder shall be published, displayed or posted publicly, except for purposes as may be specified by regulations. 30. Biometric information deemed to be sensitive personal information.-The biometric information collected and stored in electronic form, in accordance with this Act and regulations made thereunder, shall be deemed to be "electronic record" and "sensitive personal data or information", and provisions contained in Information Technology Act, 2000 (21 of 2000) and rules made thereunder shall apply to such information, in addition to, and to extent not in derogation of provisions of this Act. Explanation.-- For purposes of this section, expressions (a) "electronic form" shall have same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of Information Technology Act, 2000 (21 of 2000); (b) "electronic record" shall have same meaning as assigned to it in clause (t) of sub-section (1) of section 2 of Information Technology Act, 2000 (21 of 2000); Writ Petition (Civil) No. 247 of 2017 & Ors. Page 22 "sensitive personal data or information" shall have same meaning as assigned to it in clause (iii) of Explanation to section 43A of Information Technology Act, 2000 (21 of 2000). That apart, Chapter VII which comprises Sections 34 to 47, mentions various offences and prescribes penalties therefor. 18) Even Constitutional validity of aforesaid Act is challenged in this Court in Writ Petition (C) No. 797 of 2016, which has also been tagged along with Writ Petition (C) No. 494 of 2012, lead matter in batch of matters which has been referred to Constitution Bench. 19) At this juncture, by Finance Act, 2017, Income Tax Act is amended with introduction of Section 139AA which provision has already been reproduced. It would be necessary to mention at this stage that since challenge to very concept of Aadhaar i.e. unique identification number is predicated primarily on Right to Privacy, when instant writ petitions were initially listed before us, we suggested that these matters be also tagged along with Writ Petition (C) No. 494 of 2012 and other matters which have been referred to Constitution Bench. Pertinently, in counter affidavit filed on behalf of Union of India also, plea has been taken that matters be tagged along with those pending writ Writ Petition (Civil) No. 247 of 2017 & Ors. Page 23 petitions and be decided by larger Bench. On this suggestion, reaction of learned counsel for petitioners was that petitioners would not be pitching their case on Right to Privacy and would be questioning validity of Section 139AA of Act primarily on Articles 14 and 19 of Constitution. On this basis, their submission was that this Bench should proceed to adjudicate matter. Therefore, we make it clear at outset that we are not touching upon privacy issue while determining question of validity of impugned provision of Act. Arguments 20) Mr. Datar, learned senior counsel who opened attack on behalf of petitioners, started by stating historical fact pertaining to introduction of Aadhaar Scheme, leading to passing of Aadhaar Act and thereafter impugned provision and referring to various orders passed by this Court from time to time (which have already been reproduced above). After this narration, his first submission was that this Court had, time and again, emphasised by various interim orders that obtaining Aadhaar Card would be voluntarily act on behalf of citizen and it would not be made mandatory till pendency of petitions which stand referred to Constitution Bench now. He further Writ Petition (Civil) No. 247 of 2017 & Ors. Page 24 submitted that even Section 3 of Aadhaar Act spells out that enrollment of Aadhaar is voluntarily and consensual and not compulsory or by way of executive action. He also drew our attention to proviso to Section 7 of Aadhaar Act as per which person is not to be deprived of subsidies as per various schemes of Government as said proviso clearly mentions that if Aadhaar Number is not assigned to individual, he shall be offered alternate and viable means of identification for delivery of subsidy, benefit or service. According to him, there was total reversal of aforesaid approach for assessees under Income Tax Act and those who wanted to apply for issuance of PAN Card inasmuch as not only it was made compulsory for them to get Aadhaar enrollment number, but serious consequences were also provided for not adhering to this requirement. In their cases, PAN issued to these assessees had to become invalid, that too from retrospective effect i.e. from date when it is issued. Having regard to aforesaid, legal submission of Mr. Datar was that Section 139AA was unconstitutional and without legislative competence inasmuch as this provision was enacted contrary to binding nature of judgments/directions of this Court which was categorical that Aadhaar had to remain voluntary. Questioning legislative Writ Petition (Civil) No. 247 of 2017 & Ors. Page 25 competence of legislature to enact this particular law, argument of Mr. Datar was that there were certain implied limitations of such legislative competence and one of these limitations was that legislature was debarred from enacting law contrary to binding nature of decisions of this Court. His submission in this behalf was that though it was within competence of legislature to remove basis of Supreme Court decision, at same time, legislature could not go against decision which was law of land under Article 141 of Constitution. He argued that, in instant case, legislature could not be construed as removing basis of various orders of this Court relating to Aadhaar Scheme itself but impugned provision was inserted in statute book violating binding nature of those orders. 21) Dilating on aforesaid submissions, Mr. Datar argued that earlier orders of this Court dated August 23, 2015 of main writ petition specifically permitted Aadhaar to be used only for LPG and PDS. By order dated October 15, 2015, at request of Union of India, it was permitted to be extended to three other schemes, namely, MNREGA, Jan Dhan Yojana etc. Constitution Bench made it explicitly clear that Aadhaar Writ Petition (Civil) No. 247 of 2017 & Ors. Page 26 scheme could not be used for any other purpose. According to him, Parliament did not in any manner remove basis of these decisions. Aadhaar scheme, as enacted under Aadhaar Act, continued to retain its voluntary character (as demonstrated by Section 3 of that Act) that existed when Aadhaar was operating under executive instructions. Nonetheless, even if it is argued that above orders were passed when Aadhaar was based on executive instructions, decisions of this Court continue to be binding as they are made in exercise of judicial power. According to Mr. Datar, any judgment of court, whether interim or final, whether rendered in context of legislation, delegated legislation (rules/notifications) or even executive action will continue to be binding. In view of judgment of this Court in Ram Jawaya Kapoor v. State of Punjab3, which held that executive and legislative powers are co-extensive under Constitutional scheme, unless basis of judgment is removed by subsequent enactment, it cannot be argued that decision based on executive instruction is less binding than other judgments/orders of Supreme Court, or that judgment/order loses force if executive instruction is replaced by law. 3 (1955) 2 SCR 225 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 27 22) He also referred to decision in case of Madan Mohan Pathak v. Union of India4, wherein direction of Calcutta High Court to pay bonus to Class-III and Class-IV employees was sought to be nullified by statutory amendment. This was held to be impermissible by seven Judges Bench. He also relied upon Bakhtawar Trust v. M.D. Narayan5, wherein, after citing case-laws on this point, Court reiterated principle as follows: 25. decisions referred to above, manifestly show that it is open to legislature to alter law retrospectively, provided alteration is made in such manner that it would no more be possible for Court to arrive at same verdict. In other words, very premise of earlier judgment should be uprooted, thereby resulting in fundamental change of circumstances upon which it was founded. xxx xxx xxx 27. Here, question before us is, whether impugned Act has passed test of constitutionality by serving to remove very basis upon which decision of High Court in writ petition was based. This question gives rise to further two questions first, what was basis of earlier decision; and second, what, if any, may be said to be removal of that basis? (emphasis supplied) 23) Based on above principles, Mr. Datar s fervent plea was that: (i) basis of earlier order of Supreme Court is that Aadhaar will be made voluntary scheme, it is 4 AIR 1978 SC 803 5 (2003) 5 SCC 298 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 28 consensual scheme, and that it is to be expressly limited to six specific purposes; and (ii) No attempt whatsoever has been made to remove basis of these earlier orders. This alone renders Section 139AA unconstitutional. 24) Arguing that basis of orders of this Court was not removed, plea of Mr. Datar was that basis of said orders was that serious constitutional concerns had been raised about Aadhaar scheme, and that therefore, pending final decision on its validity by Supreme Court, it ought to remain voluntary. Consequently, in order to remove basis of these orders, Parliament would have to pass law overturning voluntary character of Aadhaar itself. Notably, although Parliament did have chance to do so, it elected not to. Aadhaar Act came into force on March 25, 2016. This was after order of this Court. Significantly, however, Parliament continued to maintain Aadhaar as voluntary scheme vide Section 3 of said Act. Mr. Datar submitted that if Parliament so desired, it could have removed basis of this Court s order by: (i) Amending Section 3 so that Aadhaar is made compulsory for every resident of India; or (ii) Introducing either proviso or adding sub-section in Section 3 to following effect: Writ Petition (Civil) No. 247 of 2017 & Ors. Page 29 Notwithstanding anything contained in sub-section (1), Central Government may notify specific purposes for which obtaining Aadhaar numbers may be made mandatory in public interest. 25) However, Parliament elected not to do so as there is no non-obstante clause. Instead of making enrollment for Aadhaar itself mandatory, it made Aadhaar mandatory for filing income-tax returns, even as enrollment itself remained voluntary under Section 3 of Aadhaar Act. He, thus, submitted that far from taking away basis of earlier Supreme Court orders. Aadhaar Act strengthened and endorsed those orders, while Section 139AA impermissibly attempted to overturn them without taking away their basis. Indeed, Parliament did not even sof ar as include non-obstante clause in Section 139AA, which would have made it clear that Section would override contrary laws clearly indicating once again that Section 13AA was not taking away basis of Court s orders. emphasis of Mr. Datar is that unless suitable/appropriate amendments are made to Aadhaar Act, orders of Court cannot be overruled by newly inserted Section 139AA. 26) On aforesaid edifice, argument built and developed by Mr. Datar is that although power of Parliament to pass laws with respect to List-I and List-III is plenary, it is subject to two implied Writ Petition (Civil) No. 247 of 2017 & Ors. Page 30 limitations: (i) Parliament or any State legislature cannot pass any law that overrules judgment; before any law is passed which may result in nullifying decision, it is mandatory to remove basis of decision. Once basis on which earlier decision/order/judgment is delivered is removed, Parliament can then pass law prospectively or retrospectively and with or without validation clause. (ii) Implied limitation not to pass contrary laws: doctrine of harmonious construction applies when there is accidental collision or conflict between two enactments and Supreme Court has repeatedly read down one provision to give effect to other. Thus, both provisions have to be given effect to. But if collision or conflict is such that one provision cannot co-exist with another, then latter provision must be struck down. In present case, obtaining Aadhaar number continues to be voluntary and explicitly declared to be so. Once Aadhaar Card is voluntary, it cannot be made mandatory by impugned Section 139AA of Act. As long as Aadhaar enactment holds field, there is implied limitation on power of Parliament not to pass contrary law. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 31 27) He also advanced two examples of such implied limitation: (i) If Parliament, by statute, makes medical service in rural areas attractive option for doctors with incentives like preference for post-graduate admissions, higher pay/allowances, or even lower tax, such scheme is voluntary and only those doctors who want those benefits may opt for it. While such statute exists, it will not be permissible for Parliament to simultaneously amend Medical Council Act, 1956 and state that absence of rural service will be ground to invalidate doctor s certificate of practice. Thus, what is statutorily voluntary under one Parliamentary Act cannot be made statutorily compulsory under another Parliamentary Act at same time. (ii) Second example given by Mr. Datar was that making Aadhaar compulsory only for individuals with severe consequences of cancellation of PAN cards and deeming provision that they had never applied for PAN is discriminatory when such provision is not made mandatory for other assessees. 28) Mr. Datar s next plea of violation of Article 14 was based by him on application of twin-test of classification viz. there Writ Petition (Civil) No. 247 of 2017 & Ors. Page 32 should be reasonable classification and that this classification should have rational nexus with objective sought to be achieved as held in R.K. Dalmia v. Justice S.R. Tendolkar6. Mr. Datar conceded that first test was met as individual assessees form separate class and, to this extent, there is rational differentiation between individuals and other categories of assessees. main brunt of his argument was on second limb of twin-test of classification which according to him is not satisfied because there is no rational nexus with object sought to be achieved. 29) Third argument of Mr. Datar was that affected persons by Section 139AA are individuals who are professionals like lawyers, doctors, architects etc. and lakhs of businessmen having small or micro enterprises. By imposing draconian penalty of cancelling their PAN cards and deeming that they had never applied for them, there is direct infringement to Article 19(1)(g). consequences of not having PAN card results in virtual civil death and it will be impossible to carry out any business or professional activity under Rule 114B of Income Tax Rules, 1962 (hereinafter referred to as Rules ), it will not be possible to operate bank accounts with transactions above Rs.50,000/-, 6 (1959) SCR 279 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 33 use credit/debit cards, purchase motor-vehicles, purchase property etc. 30) Elaborating this point, it was submitted by him that once it is shown that right under Article 19(1)(g) has been infringed, burden shifts to State to show that restriction is reasonable, and in interests of public, under Article 19(6) of Constitution. He referred to Modern Dental College and Research Centre & Ors. v. State of Madhya Pradesh7, wherein this Court held that correct test to apply in context of Article 19(6) was test of proportionality: limitation of constitutional right will be constitutionally permissible if : (i) it is designated for proper purpose; (ii) measures undertaken to effectuate such limitation are rationally connected to fulfilment of that purpose; (iii) measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with lesser degree of limitation; and finally (iv) there needs to be proper relation ( proportionality strict sensu or balancing ) between importance of achieving proper purpose and social importance of preventing limitation on constitutional right. 31) Mr. Datar also submitted that even if State succeeds in showing proper purpose and rational connection with purpose, thereby meeting test of Article 14, impugned law clearly fails on clauses (iii) (narrow tailoring) and (iv) (balancing) 7 (2016) 7 SCC 353 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 34 of proportionality test of above decision. He submitted that State has failed entirely to show that cancellation of PAN Cards as consequence of not enrolling for Aadhaar with its accompanying draconian consequences for economic life of individual is narrowly tailored to achieving its goal of tax compliance. It is also submitted that in accordance with arguments advanced above, State s own data shows that problem of duplicate PANs was minuscule, and gap between tax payer base and PAN Card holding population can be explained by plausible factors other than duplicates and forgeries. He questioned wisdom of legislature in compelling 99.6% of taxpaying citizenry to enroll for Aadhaar (with further prospect of seeding) in order to weed out 0.4% of duplicate PAN Cards, as it fails proportionality test entirely. 32) On principle of proportionality, he submitted that this principle was applied in R.K. Dalmia8 case as per following passage: 11 (d) that Legislature is free to recognize degrees of harm and may confine its restrictions to those cases where need is deemed to be clearest; (e) that in order to sustain presumption of constitutionality court may take into consideration matters of common knowledge, matters of common 8 Footnote 6 above Writ Petition (Civil) No. 247 of 2017 & Ors. Page 35 report, history of times and may assume every state of facts which can be conceived existing at time of legislation; 33) Basic premise of submissions of Mr. Shyam Divan, learned senior advocate, was also same as projected by Mr. Datar. He insisted that Section 139AA of Act, which had made Aadhaar mandatory for income-tax assessees, is unconstitutional. However, in his endeavour to plead that provision be declared unconstitutional, he approached subject from altogether different premise, giving another perception to 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 condition precedent to enjoy certain rights. He pointed out that all petitioners in his writ petition were holding PAN Cards and were income-tax assessees but had not enrolled under Aadhaar Scheme. They were consentions persons in 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 Government for undertaking job of enrolment under Aadhaar. It was submitted that data given to such persons were not safe and there was huge possibility that same may Writ Petition (Civil) No. 247 of 2017 & Ors. Page 36 be leaked. Further, requirement of giving Aadhaar number for every transaction amounted to surveillance by State and entire profile of such persons would be available to State. He also pointed out that with today s technology, there was every possibility of copying fingerprint and even iris images. Various cases of fake Aadhaar Card had come to light and even as per 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 issues within realm of Right to Privacy which were to be decided by Constitution Bench. However, according to him, various orders passed by this Court in those petitions clearly reflect that Court had given directions that Aadhaar Scheme had to be voluntarily; there would not be any illegal implants; and no one would suffer any consequences if he does not enroll himself under Aadhaar Scheme. He also submitted that even Aadhaar Act was voluntary in nature which creates rights for citizens and not obligations. According to him, Aadhaar Act envisages free consent for getting certain benefits under social welfare schemes of Government. On other hand, Section 139AA of Act is compulsory and coercive. Pointing out that if Aadhaar number is not mentioned in income-tax Writ Petition (Civil) No. 247 of 2017 & Ors. Page 37 returns, effect provided under Section 139AA of Act is that PAN Card held by such 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, 196J, 271F and 272B of Act and Rule 114B of Rules to demonstrate this. He also referred to provisions of Identification of Prisoners Act, 1920 which require prisoner to give his fingerprints for record and submitted that making Aadhaar compulsory amounted to treating every person at par with prisoner. 34) On aforesaid premise, Mr. Divan articulated his legal submissions as under: (i) Section 139AA of Act is contrary to concept of limited Government . (ii) impugned provision coerces individuals to part with their private information which was part of human dignity and, thus, said provision was violative of Article 21 of Constitution as it offended human dignity. (iii) impugned provision creates involvement which can be used for surveillance. (iv) This provision converts right under Aadhaar Act to duty Writ Petition (Civil) No. 247 of 2017 & Ors. Page 38 under Income Tax Act. 35) Elaborating on argument predicated on concept of Limited Government , Mr. Divan submitted that Constitution of India was basic law or grundnorm which ensures democratic governance in this country. Though sovereign country, its governance is controlled by provisions of Constitution which sets parameters within which three wings of State, namely, Legislature, Executive and Judiciary has to function. Thus, no wing of State can breach limitations provided in Constitution which employs array of checks and balances to ensure open, accountable government where each wing of State performs its actions for benefit of people and within its sphere of responsibility. checks and balances are many and amongst them are respective roles assigned by Constitution to legislature, executive and judiciary. Under India s federal structure, with distribution of legislative authority between Union government and States, fields of legislation and corresponding executive authority are also distributed between Union and States. Provisions in Constitution such as fundamental rights chapter (Part III) and chapter relating to inter-state trade (Part XIII) also Writ Petition (Civil) No. 247 of 2017 & Ors. Page 39 circumscribe authority of State. These limitations on power of State support notion of limited government . In this sense, expression limited government would mean that each wing of State is restricted by provisions of Constitution and other laws and is required to operate within its legitimate sphere. Exceeding these limits would render action of State ultra vires Constitution or particular law. He further argued that concept of limited government may also be understood in much broader and different sense. This notion of limited government is qua citizenry as whole. There are certain things that State simply cannot do, because action fundamentally alters relationship between citizens and State. wholesale collection of biometric data including finger prints and storing it at central depository per se puts State in extremely dominant position in relation to individual citizen. Biometric data belongs to concerned individual and State cannot collect or retain it to be used against individual or to his or her prejudice in future. Further State cannot put itself in position where it can track individual and engage in surveillance. State cannot deprive or withhold enjoyment of rights and entitlements by individual or makes such entitlements conditional on citizen Writ Petition (Civil) No. 247 of 2017 & Ors. Page 40 parting with her biometrics. Mr. Divan referred to judgment of this Court in State of Madhya Pradesh & Anr. v. Thakur Bharat Singh9 where concept of limited government is highlighted in following manner: 5. ...All executive action which operates to prejudice of any person must have authority of law to support it, and terms of Article 358 do not detract from that rule. Article 358 expressly authorises State to take legislative or executive action provided such action was competent for State to make or take, but for provisions contained in Part III of Constitution. Article 358 does not purport to invest State with arbitrary authority to take action to prejudice of citizens and others: it merely provides that so long as proclamation of emergency subsists laws may be enacted, and exclusive action may be taken in pursuance of lawful authority, which if provisions of Article 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) sovereignty of people with limited Government authority i.e. Government must be conducted in accordance with will of majority of people. people govern themselves through their representatives, whereas official agencies of executive Government possess only such powers as have been conferred upon them by people; (2) There is distribution of powers between three organs of State legislative, executive and judicial each organ having some check direct or indirect on other; and (3) rule of law which includes judicial review of arbitrary executive action. As pointed out by Dicey in his Introduction to study of Law of Constitution, 10th Edn., at p. 202, expression rule of law has three meanings, or may be regarded from three different points of view. It means, in first place, absolute supremacy or predominance of regular law as opposed to influence of arbitrary power, and excludes existence of arbitrariness, of prerogative, or even of wide discretionary authority on part of 9 AIR 1967 SC 1170 : (1967) 2 SCR 454 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 41 Government . At p. 188 Dicey points out: In almost every continental community executive exercises far wider discretionary authority in matter of arrest, of temporary imprisonment, of expulsion from its territory, and like, than is either legally claimed or in fact exerted by Government in England: and study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in republic no less than under monarchy discretionary authority on part of Government must mean insecurity for legal freedom on part of its subjects. We have adopted under our Constitution not continental system but British system under which rule of law prevails. Every Act done by Government or by its officers must, if it is to operate to prejudice of any person must, be supported by some legislative authority. 36) Relying on aforesaid observations, Mr. Divan submitted that recognition of distinction between individual or person and State is single most important factor that distinguishes totalitarian State from one that respects individuals and recognizes their special identity and entitlement to dignity. Indian Constitution does not establish totalitarian State but creates State that is respectful of individual liberty and constitutionally guaranteed freedoms. Constitution of India is not charter of servitude. 37) Proceeding further, another submission of Mr. Divan, as noted Writ Petition (Civil) No. 247 of 2017 & Ors. Page 42 above, was that Section 139AA which coerces individuals to part with their personal information was unconstitutional. He submitted that citizen is entitled to enjoy all these rights including social and civil rights such as right to receive education, scholarship, medical assistance, pensions and benefits under government schemes without having to part with his or her personal biometrics. individual s biometrics such as finger prints and iris scan are property and entitlement of that individual and State cannot coerce individual or direct him or her to part with biometrics as condition for exercise of rights or enjoyment of entitlements. Every citizen has basic right to informational self-determination and state cannot exercise dominion over citizen s proprietary information either in individual cases or collectively so as to place itself in position where it can aggregate information and create detailed profiles of individuals or facilitate this process. Constitution of India is not charter for Police State which permits State to maintain cradle to grave records of citizenry. No democratic country in world has devised system similar to Aadhaar which operates like electronic leash to tether every citizen from cradle to grave. There can be no question of free consent in situations where individual is being coerced to part with its Writ Petition (Civil) No. 247 of 2017 & Ors. Page 43 biometric information (a) to be eligible for welfare schemes of State; and/or (b) under threat of penal consequences. In other words, State cannot compel person to part with biometrics as condition precedent for discharge of State s constitutional and statutory obligations. In support of his submission that there cannot be coercive measures on part of Government to part with such information and it has to be voluntary and based on informed consent, Mr. Divan refered to following judgments: (i) National Legal Services Authority v. Union of India & Ors.10 75. Article 21, as already indicated, guarantees protection of personal autonomy of individual. In Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35), this Court held that personal autonomy includes both negative right of not to be subject to interference by others and positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is integral part of personal autonomy and self-expression and falls within realm of personal liberty guaranteed under Article 21 of Constitution of India. (ii) Sunil Batra & Anr. v. Delhi Administration & Ors.11 55. And what is life in Article 21? In Kharak Singh case [AIR 1963 SC 1295 : (1964) 1 SCR 332, 357] Subba Rao, J. quoted Field, J. in Munn v. Illinois [94 US 113 (1877)] to emphasise quality of life covered by Article 21: 10 (2014) 5 SCC 438 11 (1978) 4 SCC 494 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 44 Something more than mere animal existence. inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. provision equally prohibits mutilation of body by amputation of arm or leg, or putting out of eye or destruction of any other organ of body through which soul communicates with outer world. dynamic meaning must attach to life and liberty. (iii) Aruna Ramachandra Shanbaug v. Union of India & Ors.12 25. Mr T.R. Andhyarujina, learned Senior Counsel whom we had appointed as amicus curiae, in his erudite submissions explained to us law on point. He submitted that in general in common law it is right of every individual to have control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has right to determine what shall be done with his own body. In case of medical treatment, for example, surgeon who performs operation without patient's consent commits assault or battery. It follows as corollary that patient possesses right not to consent i.e. to refuse treatment. (In United States this right is reinforced by constitutional right of privacy). This is known as principle of self-determination or informed consent. Mr Andhyarujina submitted that principle of self-determination applies when patient of sound mind requires that life support should be discontinued. same principle applies where patient's consent has been expressed at earlier date before he became unconscious or otherwise incapable of communicating it as by living will or by giving written authority to doctors in anticipation of his incompetent situation. xxx xxx xxx 12 (2011) 4 SCC 454 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 45 93. Rehnquist, C.J. noted that in law even touching of one person by another without consent and without legal justification was battery, and hence illegal. notion of bodily integrity has been embodied in requirement that informed consent is generally required for medical treatment. As observed by Cardozo, J. while on Court of Appeals of New York: Every human being of adult years and sound mind has right to determine what shall be done with his own body, and surgeon who performs operation without his patient's consent commits assault, for which he is liable in damages. Vide Schloendorff v. Society of New York Hospital [211 NY 125 : 105 NE 92 (1914)] , NY at pp. 129-30, NE at p. 93. Thus informed consent doctrine has become firmly entrenched in American Tort Law. logical corollary of doctrine of informed consent is that patient generally possesses right not to consent, that is, to refuse treatment. 38) He, thus, submitted that right to life covers and extends to person s right to protect his or her body and identity from harm. right to life extends to allowing person to preserve and protect his or her finger prints and iris scan. strongest and most secure manner of 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 right to life under Article 21 permits every person to live life to fullest and to enjoy freedoms guaranteed as fundamental rights, constitutional rights, statutory rights and common law rights. He also argued that Writ Petition (Civil) No. 247 of 2017 & Ors. Page 46 constitutional validity of statutory provision must be judged by assessing effect impugned provision has on fundamental rights. effect of impugned provision is to coerce persons into parting with their finger prints and iris scan and lodging these personal and intimate aspects of individual s identity with State as part of programme that is in petitioner s view wholly illegitimate and validity of which is pending before Constitution Bench. 39) Expressing his grave fear and misuse of personal information parted with by citizenry in form of biometrics i.e. finger prints and iris scan, Mr. Divan made passionate plea that requirement of enrollment for Aadhaar is designed to facilitate and encourage private sector operators to create applications that depend upon Aadhaar data base for purposes of authentication/verification. This would mean that non-governmental, private sector entities such as banks, employers, any point of payment, taxi services, airlines, colleges, schools, movie theatres, clubs, service providers, travel companies, etc. will all utilise Aadhaar data base and may also insist upon Aadhaar number or Aadhaar authentication. This would mean that at every stage in individual s daily activity his or her presence could be traced to location in real Writ Petition (Civil) No. 247 of 2017 & Ors. Page 47 time. One of purposes of Aadhaar as projected by respondents is that it will be single point verification for KYC (Know Your Customer). This is permissible and indeed contemplated by impugned Act. Given very poor quality of scrutiny of documents by private enrollers and enrollment agencies (without any governmental supervision) means that more rigorous KYC process at present being employed by banks and other financial institutions will yield to system which depends on much weaker data base. This would eventually imperil integrity of financial system and also threaten economic sovereignty of nation. According to him, Aadhaar Act does not serve as identity as incorrectly projected by respondents but serves as method of identification. Every citizen-state and citizen-service provider interaction requiring identification is sought to be captured and retained by government at central base and whole ecology developed that would require reference to this central data base on multiple occasions in course of day. He argued that this exercise of enrollment impermissibly creates foundation for real time, continuous and pervasive identification of citizens in breach of freedoms guaranteed under Constitution. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 48 40) Another submission of Mr. Divan was that object behind Section 139AA of 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 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 becomes discriminatory qua that class and, therefore, is violative of Article 14 of Constitution. Another limb of his submission was that it also creates artificial class of those who object to such provision of enrollment under Aadhaar. According to him, this would be violative of equality clause enshrined in Article 14 of Constitution and in support of this submission, he relied upon judgment of this Court in Nagpur Improvement Trust & Anr. v. Vithal Rao & Ors.13. Paras 21, 22 and 26 reads as under: 21. first point which was raised was: whether it is State which is acquiring authority or it is Improvement Trust which is acquiring authority, under Improvement Act. It seems to us that it is quite clear, especially in view of Section 17-A as inserted by para 6 of Schedule, that acquisition will be by Government and it is only on payment of cost of acquisition to Government that lands vest in Trust. It is true that acquisition is for Trust and may be at its instance, but nevertheless acquisition is by Government. 22. If this is so, then it is quite clear that 13 (1973) 1 SCC 500 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 49 Government can acquire for housing accommodation scheme either under Land Acquisition Act or under Improvement Act. If this is so, it enables State Government to discriminate between one owner equally situated from another owner. xxx xxx xxx 26. It is now well-settled that State can make reasonable classification for purpose of legislation. It is equally well-settled that classification in order to be reasonable must satisfy two tests: (i) classification must be founded on intelligible differentia and (ii) differentia must have rational relation with object sought to be achieved by legislation in question. In this connection it must be borne in mind that object itself should be lawful. object itself cannot be discriminatory, for otherwise, for instance, if object is to discriminate against one section of minority discrimination cannot be justified on ground that there is reasonable classification because it has rational relation to object sought to be achieved. 41) He also relied upon judgment in case of Subramanian Swamy v. Director, Central Bureau of Investigation & Anr.14. Paras 58 and 59 reads as under: 58. Constitution permits State to determine, by process of classification, what should be regarded as class for purposes of legislation and in relation to law enacted on particular subject. There is bound to be some degree of inequality when there is segregation of one class from other. However, such segregation must be rational and not artificial or evasive. In other words, classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have reasonable relation to object of legislation. Differentia which is basis 14 (2014) 8 SCC 682 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 50 of classification must be sound and must have reasonable relation to object of legislation. If object itself is discriminatory, then explanation that classification is reasonable having rational relation to object sought to be achieved is immaterial. 59. It seems to us that classification which is made in Section 6-A on basis of status in government service is not permissible under Article 14 as it defeats purpose of finding prima facie truth into allegations of graft, which amount to offence under 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. corrupt public servants, whether high or low, are birds of same feather and must be confronted with process of investigation and inquiry equally. Based on position or status in service, no distinction can be made between public servants against whom there are allegations amounting to offence under PC Act, 1988. 42) In fine, submission of Mr. Divan was that save and except by reading down , section 139AA is unworkable. This is because Aadhaar by its very design and by its statute is voluntary and creates right in favour of resident without imposing any duty. There is no compulsion under Aadhaar Act to enroll or obtain number. If person chooses not to enroll, at highest, in terms of Aadhaar Act, he or she may be denied access to certain benefits and services funded through Consolidated Fund of India. When Aadhaar enrollment procedure is supposedly based on informed free consent and is voluntary person cannot be compelled by another law to waive free consent Writ Petition (Civil) No. 247 of 2017 & Ors. Page 51 so as to alter voluntary nature of enrollment that is engrafted in parent statute. right of resident under parent Act cannot be converted into duty so long as provisions of Aadhaar Act cannot be converted into duty so long as provisions of Aadhaar Act remain as they are. Argument was that Section 139AA be read down to hold that it is only voluntary provision by taking out sting of mandatoriness contained therein and there is no compulsion on any person to give Aadhaar number. 43) We may mention at this stage itself that on conclusion of his arguments, Mr. Divan was put specific query that most of arguments presented by him endeavoured to project aesthetics of law and jurisprudence which had shades of Right to Privacy jurisprudence which could not be gone into by this Bench as this very aspect was already referred to Constitution Bench. Mr. Divan was candid in accepting this fact and his submission was that in these circumstances, option for this Bench was to stay operation of proviso to sub-section (2) of Section 139AA of Act till decision is rendered by Constitution Bench. 44) Mr. Salman Khurshid, learned senior counsel who appeared in Writ Petition (Civil) No. 247 of 2017, while adopting Writ Petition (Civil) No. 247 of 2017 & Ors. Page 52 arguments of Mr. Datar and Mr. Divan, made additional submission, invoking principle of right to live with dignity which, according to him, was somewhat different from Right to Privacy. He submitted that although dignity inevitably includes privacy, former has several other dimensions which need to be explored as well. In his submissions, 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, concept of dignity is quite distinct from that of privacy. Privacy is conditional concept. One has it only to extent that one s circumstances allow for it, as matter of fact and law. While it is widely accepted that situation may occur where person may not have any Right to Privacy whatsoever, dignity is inherent possession of every person, regardless of circumstance. In that sense, Dignity is inherent dimension of equality, basis of John Rawls Theory of Justice . Social Contract theory propounded by Rousseau remains ground on which John Rawls developed model of Original Position in which contours of compact are conceived. Anything that reduces personality of participant, such as diluting human element and substituting it with number or biometric data, Writ Petition (Civil) No. 247 of 2017 & Ors. Page 53 virtually destroys model. Dignity is immutable value, held in equal measure at all times by all people, quality privacy does not share. No court has ever held that person can be stripped entirely of hir/her dignity. concept of dignity is deeper than that of privacy and its boundaries do not depend upon circumstance of any individual and thus 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 concept of Right to Dignity in following manner: 20. ... This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part III on principle that certain unarticulated rights are implicit in enumerated guarantees. xxx xxx xxx 26. It is duty of State not only to protect human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to 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. constitutional courts in Germany, therefore, see human dignity as fundamental principle within system of basic rights. This is how doctrine of basic structure stands evolved under German Constitution and by interpretation given to concept by constitutional courts. 45) After explaining aforesaid distinction between two concepts, Mr. Khurshid argued that impugned provision in 15 (2006) 8 SCC 212 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 54 Income Tax Act was violative of right to live with dignity guaranteed under Article 21 of Constitution. He submitted that Right to Life and Liberty mentioned in Article 21 of 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 concept of dignity was dealt with by different jurists from time to time including Kant who identified dignity with autonomy and Dworkin who exemplified doctrine of dignity on conception of living well, which itself is based on two principles of dignity, namely, self respect and authenticity. In this sense, he submitted that living with dignity involves giving importance to living our life well and acting independently from personal sense of character and commitment to standards and ideals we stand for. mandatory requirement of Aadhaar card makes unwarranted intrusion in importance we give to our bodily integrity in living our life well and compels human beings to express themselves way State wants. He also submitted that features relevant for upholding dignity of human being will be severely compromised with when data are cross-referenced with data relating to other spheres of life and are disclosed to third parties through different data collected for varied reasons. This would take place without knowledge Writ Petition (Civil) No. 247 of 2017 & Ors. Page 55 and consent of poor assessees who are apparently required to mandatory obtain Aadhaar card only for purposes of payment of taxes. 46) Mr. Khurshid also raised doubts and fears about unauthorised disclosure of information given by these persons who enroll themselves under Aadhaar and submitted that in absence of proper mechanism in place to check unauthorised disclosure, impugned provision of making Aadhaar card for filing tax returns cannot be said to be consistent with democratic ideals. Mr. Khurshid also submitted that there was no compelling state interests in having such provision introducing compulsive element and depriving from erstwhile voluntary nature of Aadhaar scheme. According to him, proportionality of means concept is essential one since integrating data beyond what is really necessary for stated purpose is clearly unconstitutional. He submitted that in light of decision in case of Gobind v. State of Madhya Pradesh16, which has been position of this Court since past forty-two years and has been cited with approval often, it is humbly submitted that State has onerous burden of justifying impugned mandatory provision. compelling state interest justification is only one aspect of 16 (1975) 2 SCC 148 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 56 broader strict scrutiny test, which was applied by this Court in Anuj Garg v. Hotel Association of India17. other essential facet is to demonstrate narrow tailoring , i.e., that State must demonstrate that even if compelling interest exists, it has adopted method that will infringe in narrowest possible manner upon individual rights. He submitted that neither is there any compelling State interest warranting such harsh mandatory provision, nor has it been narrowly tailored to meet object, if any. 47) In this hue, he also submitted that Section 139AA of Act violates Rule of Law. Elaborating his argument, he submitted that legal system which in general observes rule of law treats its people as persons, in sense that it attempts to guide their behaviour through affecting circumstances of their action. It, 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 of result. On other hand, when rule of law is violated, it may be either in form of leading to uncertainty or it may lead to frustrated and disappointed 17 (2008) 3 SCC 1 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 57 expectations. It leads to first when law does not enable people to foresee future developments or to form definite expectations. It leads to frustrated expectations when appearance of stability and certainty which encourages people to rely and plan on basis of existing law is shattered by retroactive law-making or by preventing proper law-enforcement, etc. evils of frustrated expectations are greater. Quite apart from concrete harm they cause they also offend dignity in expressing disrespect for people s autonomy. law in such cases encourages autonomous action only in order to frustrate its purpose. When such frustration is result of human action or result of activities of social institutions then it expresses disrespect. Often it is analogous to entrapment: one is encouraged innocently to rely on law and then that assurance is withdrawn and one s very reliance is turned into cause of harm to one. Just as in instant case, impugned provision came into force when order of Court that Aadhaar card is not mandatory, still continues to operate. 48) In alternative, another submission of Mr. Khurshid was that Section 139AA was retrospective in nature as per proviso to sub-section (2) thereof. As per said proviso, on failure to give Writ Petition (Civil) No. 247 of 2017 & Ors. Page 58 Aadhaar number, consequence was not only to render PAN Card invalid prospectively but from initial date of issuance of PAN Card in view of expression as if person had not applied for Permanent Account Number which would meant that PAN Card would be invalidated by rendering same void ab initio i.e. from retrospective effect. Such retrospective effect, according to him, was violative of Article 20(1) of Constitution. Further, retrospective operation is not permissible without separate objects for such operations as held in Dayawati v. Inderjit18. In conclusion, learned senior counsel submitted that law regarding mandatory requirement of Aadhaar card is hasty piece of legislation without much thought going into it. It is submitted that 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 dignity of assessees is not compromised with. generalisation, centralisation and disclosure of biometric information, however, accidental it might be, has to be effectively controlled and mechanisms have to be put in place to inquire and penalise those found guilty of disclosing such information. need to do so is extremely 18 (1966) 3 SCR 275 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 59 crucial in view of fact that biometric systems may be bypassed, hacked, or even fail. Unless same is done, identity of citizens will be reduced to collection of instrumentalised markers. Further, organisations and authorities allowed to conduct it should be strictly defined. There has to be strict control over any systematic use of common identifiers. No such re-grouping of data can be allowed as could lead to use of biometrics for exclusion of vulnerable groups. Brown considers surveillance as both discursive and material practice that reifies bodies around divisive lines. Surveillance of certain communities has been both social as well as political norm. He further submitted that this Court cannot lose sight of fact that data collected under impugned provision may be used to carry out discriminatory research and sort subjects into groups for specific reasons. fact that impugned provision creates apprehension in minds of people, legitimate and reasonable enough with no preventive mechanism in place, is in itself violation of right to life and personal liberty as enshrined under Constitution. 49) Mr. Anando Mukherjee, learned counsel, appeared in Writ Petition (Civil) No. 304 of 2017, while reiterating submissions of earlier Writ Petition (Civil) No. 247 of 2017 & Ors. Page 60 counsel, argued that Section 139AA was confused, self-destructive and self-defeating provision for reason that on one hand, it had effect of making enrollment into Aadhaar mandatory, but, on other hand, by virtue of explanation contained in provision itself, it is kept voluntary and as matter of right for same set of individuals and for purposes of Section 139AA. He also submitted that there was conflict between Section 139AA of Act and Section 29 of Aadhaar Act inasmuch as Section 29 puts blanket embargo on using core biometric information, collected or created under Aadhaar Act for any purpose other than generation of Aadhaar numbers and authentication under Aadhaar Act. Mr. Mukherjee went to extent of describing impugned provision as colourable exercise of power primarily on ground that when Aadhaar Act is voluntary in nature, there was no question of making this very provision mandatory by virtue of Section 139AA of Act. 50) Appearing for Union of India, Mr. Mukul Rohatgi, learned Attorney General for India, put stiff resistance to submissions advanced on behalf of petitioners. In bid to torpedo and pulverise arguments as set forth on side of petitioners, Writ Petition (Civil) No. 247 of 2017 & Ors. Page 61 learned Attorney pyramid his arguments in following style: In first, Mr. Rohatgi made few preliminary remarks. First such submission was that many contentions advanced by counsel for petitioners touch upon question of Right to Privacy which had already been referred to Constitution Bench and, therefore, those aspects were not required to be dealt with. In this behalf, he specifically referred to following observations of this Court in its order dated August 11, 2015, which were made by three Judge Bench in Writ Petition (Civil) No. 494 of 2012: At same time, we are also of opinion that institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by smaller Benches without appropriately explaining reasons for not following pronouncements made by such larger Benches. With due respect to all learned Judges who rendered subsequent judgments where right to privacy is asserted or referred to their Lordships concern for liberty of human beings, we are of humble opinion that there appears to be certain amount of apparent unresolved contradiction in law declared by this Court. Notwithstanding these preliminary remarks, he rebutted said argument based on Article 21, including Right to Privacy, by raising plea that Right to Privacy/Personal Autonomy/Bodily Integrity is not absolute. He referred to judgment of United States Supreme Court in Roe v. Wade19 wherein it was 19 410 U.S. 113 (1973) Writ Petition (Civil) No. 247 of 2017 & Ors. Page 62 held: privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that claim asserted by some amici that one has unlimited right to do with one s body as one pleases bears close relationship to right of privacy previously articulated in Court s decisions. Court has refused to recognise unlimited right of this kind in past. He also relied upon judgment of this Court in Sharda v. Dharmpal20 where Court held that matrimonial court has power to order person to undergo medical test. Passing of such order by court would not be in violation of right to personal liberty under Article 21 of Indian Constitution. 51) His second preliminary submission was that insofar as challenge to validity of Section 139AA on other grounds is concerned, it is to be kept in mind that constitutional validity of statute could be challenged only on two grounds, i.e. Legislature enacting law was not competent to enact that particular law or such law is violative of any of provisions of Constitution. In support, he referred to various judgments of this Court. 52) He, thus, submitted that no third ground was available to any of petitioners to challenge constitutional validity of legislative enactment. According to him, principle 20 (2003) 4 SCC 493 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 63 proportionality should not be read into Article 14 of Constitution, while taking support from judgment in K.T. Plantation Private Limited & Anr. v. State of Karnataka21, wherein it is held that plea of unreasonableness, arbitrariness, proportionality, etc. always raises element of subjectivity on which court cannot strike down statute or statutory provision. 53) Third introductory submission of learned Attorney General was that scope of judicial review in fiscal statute was very limited and Section 139AA of Act, being part of fiscal statute, following parameters laid down in State of Madhya Pradesh v. Rakesh Kohli & Anr.22 had to be kept in mind: 32. While dealing with constitutional validity of taxation law enacted by Parliament or State Legislature, court must have regard to following principles: (i) there is always presumption in favour of constitutionality of law made by Parliament or State Legislature, (ii) no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found, (iii) court is not concerned with wisdom or unwisdom, justice or injustice of law as Parliament and State Legislatures are supposed to be alive to needs of people whom they represent and they are best judge of community by 21 (2011) 4 SCC 414 22 (2012) 6 SCC 312 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 64 whose suffrage they come into existence, (iv) hardship is not relevant in pronouncing on constitutional validity of fiscal statute or economic law, and (v) in field of taxation, legislature enjoys greater latitude for classification... . 54) In this hue, he also argued that State enjoys widest latitude where measure of economic regulations are concerned {See Secretary to Government of Madras & Anr. v. P.R. Sriramulu & Anr.23, paragraph 15) and that mala fides cannot be attributed to Parliament, as held in G.C. Kanungo v. State of Orissa24, (paragraph 11). Also, courts approached issue with presumption of constitutionality in mind and that Legislature intends and correctly appreciates need of its own people, as held in Mohd. Hanif Quareshi & Ors. v. State of Bihar25 (paragraph 15). 55) On merits, argument of Mr. Rohatgi was that once aforesaid basic parameters are kept in mind, impugned provision passes muster of constitutionality. Adverting to issue of legislative competence, he referred to Article 246 and 248 of Constitution as well as Entry 82 and Entry 97 of List-I of Schedule-VII of Constitution which empowers 23 (1996) 1 SCC 345 24 (1995) 5 SCC 96 25 AIR 1958 SC 731 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 65 Parliament to legislate on subject pertaining to income-tax. Therefore, it could not be said that impugned provision made was beyond competence of Parliament. He also submitted that in any case residuary power lies with Parliament and this power to legislate is plenary, as held in Synthetics and Chemicals Ltd. & Ors. v. State of U.P. & Ors.26 56. On behalf of State both Mr. Trivedi and Mr. Yogeshwar Prasad contended that regulatory power of State was there and in order to regulate it was possible to impose certain disincentives in form of fees or levies. Imposition of these imposts as part of regulatory process is permissible, it was submitted. Our attention was drawn to various decisions where by virtue of police power in respect of alcohol 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 power of regulation to impose such conditions so as to ensure that regulations are obeyed and complied with. We would not like, however, to embark upon any theory of police power because Indian Constitution does not recognise police power as such. But we must recognise exercise of sovereign power which gives States sufficient authority to enact any law subject to limitations of Constitution to discharge its functions. Hence, Indian Constitution as sovereign State has power to legislate on all branches except to limitation as to division of powers between Centre and States and also subject to fundamental rights guaranteed under Constitution. Indian State, between Centre and States, has sovereign power. sovereign power is plenary and inherent in every sovereign State to do all things which promote health, peace, morals, education and good order of people. Sovereignty is difficult to define. This power of sovereignty is, however, subject to constitutional limitations. This power, according to some 26 (1990) 1 SCC 109 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 66 constitutional authorities, is to public what necessity is to individual. Right to tax or levy imposts must be in accordance with provisions of Constitution. 56) Rebutting argument of Mr. Datar that by making impugned provision mandatory Legislature had acted contrary to judgments of this Court, Mr. Rohatgi argued that this argument was devoid of any merit on various counts: First, there was no judgment of this Court and orders referred were only interim orders. Secondly, in any case, those orders were passed at time when Aadhaar was being implemented as scheme in administrative/executive domain and Court was considering validity of Aadhaar scheme in that hue/background. Those orders have not been passed in context of examining validity of any legislative measure. Thirdly, no final view is taken in form of any judgment that Aadhaar is unconstitutional and, therefore, there is no basis in existence which was required to be removed. Fourthly, Parliament was competent to pass law and provide statutory framework to give legislative backing to Aadhaar in absence of any such law which existed at that time. He, thus, submitted that there was no question of curing alleged basis of judgment/interim orders by legislation. He specifically relied upon following passage from judgment Writ Petition (Civil) No. 247 of 2017 & Ors. Page 67 in case of Goa Foundation & Anr. v. State of Goa & Anr.27: 24. principles on which first question would require to be answered are not in doubt. power to invalidate legislative or executive act lies with Court. judicial pronouncement, either declaratory or conferring rights on citizens cannot be set at naught by subsequent legislative act for that would amount to encroachment on judicial powers. However, legislature would be competent to pass amending or validating act, if deemed fit, with retrospective effect removing basis of decision of Court. Even in such situation courts may not approve retrospective deprivation of accrued rights arising from judgment by means of subsequent legislation (Madan Mohan Pathak v. Union of India). However, where Court's judgment is purely declaratory, courts will lean in support of legislative power to remove basis of court judgment even retrospectively, paving way for restoration of status quo ante. Though consequence may appear to be exercise to overcome judicial pronouncement it is so only at first blush; closer scrutiny would confer legitimacy on such exercise as same is normal adjunct of legislative power. whole exercise is one of viewing different spheres of jurisdiction exercised by two bodies i.e. judiciary and legislature. balancing act, delicate as it is, to constitutional scheme is guided by well-defined values which have found succinct manifestation in views of this Court in Bakhtawar Trust. 57) Mr. Rohatgi thereafter read extensively from counter affidavit filed on behalf of Union of India detailing rational and objective behind introduction of Section 139AA of Act. He submitted that provision aims to achieve, inter alia, following objectives: (i) This provision was introduced to tackle problem of 27 (2016) 6 SCC 602 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 68 multiple PAN cards to same individuals and PAN cards in 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 aforesaid activities are done. de-duplication exercise was done in year 2006 and large number of PAN numbers were found to be duplicate. 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 Aadhaar Act applies to entire population, Income Tax Act applies to much smaller sub-set of population, i.e. tax payers. In order to ensure One Pan to One Person, Aadhaar can be sole criterion for allotment of PAN to individuals only after all existing PAN are seeded Writ Petition (Civil) No. 247 of 2017 & Ors. Page 69 with Aadhaar and quoting of Aadhaar is mandated for new PAN applications. Counter affidavit filed by Union of India also gives following instances of misuse of PAN: (a) In NSDL scame of 2006, about one lakh bogus bank and demat accounts were opened through use of PANs. real PAN owners were not aware of these accounts. (b) As Banks progressively started insisting on PANs for opening of bank accounts, unscrupulous operators managed multiple PANs for providing entries and operating undisclosed accounts for making financial transactions. (c) Entry operators manage large number of shell companies using duplicate PANs or PANs issued in name of dummy directors and name lenders. As persons involved as bogus directors are usually same set of persons, linkage with Aadhaar would prevent such misuse. Further, it will also be expedient for Enforcement agencies to identify and red flag such misuses in future. (d) Cases have also been found where multiple PANs are Writ Petition (Civil) No. 247 of 2017 & Ors. Page 70 acquired by single entity by dubious means and used for raising loans from different banks. In one such case at Ludhiana, multiple PANs were found acquired by person in his individual name as well as in 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 Income Tax Department in this case u/s 277A, 278, 278B of Act in addition (ii) To tackle problem of black money, Mr. Rohatgi pointed out that Second Report of Special Investigation Team (SIT) on black money, headed by Justice M.B. Shah (Retd.), after observing 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 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. SIT in its Third Report has recommended Writ Petition (Civil) No. 247 of 2017 & Ors. Page 71 establishment of Central KYC Registry. rational for SIT recommendations was to prove verifiable and authenticable identity for all individuals and Aadhaar provides mechanism to serve that purpose in federated architecture without aggregating all information at one place. Committee headed by Chairman, CBDT on Measures to tackle black money in India and abroad reveals that various authorities are dealing with menace of money laundering being done to evade taxes under garb of shell companies by persons who hold multiple bogus PAN numbers under different names or variations of their names, providing accommodation entries to various companies and persons to evade taxes and 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 revenue to tune of thousands of crores. (iii) Another objective is to curb menace of shell companies. It is submitted in this regard that PAN is basis of all requirements in process of incorporation of company. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 72 Even artificial juridical person like company is granted PAN. It is required as ID proof for incorporation of company, applying for DIN, digital signature etc. PAN is also required for opening bank account in name of company or individuals. Basic documents required for obtaining PAN are ID proof and address proof. It has been observed that these documents which are basis of issuance of PAN could easily be forged and, therefore, PAN cards issued on basis 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 time of opening of bank accounts itself, more robust identity proof like Aadhaar had been used in place of PAN, menace of mushrooming of non-descript/shell/jamakharchi/bogus companies would have been prevented. There is involvement of natural person in complex web of shell companies only at initial stage when shareholders subscribe to share capital of shell company. After that may layers are created because there is company to company transaction and much more complex structure of shell company Writ Petition (Civil) No. 247 of 2017 & Ors. Page 73 compromising financial integration of nation is formed which makes it almost impossible to identify real beneficiary (natural person) involved in these shell companies. These shell companies have been used for purpose of money laundering at large scale. fake PAN cards have facilitated 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 guise of remittances against import. share capital of these shell companies are subscribed by fake shareholders through numerous bank accounts opened with use of fake PAN cards at initial stage. (iv) According to respondents, this provision will help in widening of tax base. It was pointed out that more than 113 crore people have registered themselves under Aadhaar. Adults coverage of Aadhaar is more than 99%. Aadhaar being unique identification, problem of bogus or duplicate PANs can be dealt with in more systematic and foolproof manner. According to respondent, in fact, it has already shown results as Aadhaar has led to weeding out duplicate Writ Petition (Civil) No. 247 of 2017 & Ors. Page 74 and fakes in many welfare programmes such as PDS, MNREGS, LPG Pahal, Old Age pension, scholarships etc. during last two years and it has led to savings of approximately Rs.49,000 crores to exchequer. 58) Mr. Rohatgi also referred to that portions of counter affidavit which narrates following benefits Aadhaar seeding in PAN database: (a) Permanent Account Number (PAN) PAN is ten-digit alpha-numeric number allotted by Income Tax Department to any person who applies for it or to whom department allots number without application. One PAN for one person is guiding principle for allotment of PAN. PAN acts as identifier of taxable entity and aggregator of all financial transactions undertaken by taxable entity i.e. person . (b) Legal provisions relating to PAN PAN is key or identifier of all computerized records relating to taxpayer. requirement for obtaining of PAN is mandated through Section 139A of Act. procedure for application for PAN is prescribed in Rule 114 of Rules. forms prescribed for PAN application are 49A Writ Petition (Civil) No. 247 of 2017 & Ors. Page 75 and 49AA for Indian and Foreign Citizens/Entities. Quoting of PAN has been mandated for certain transactions above specified threshold value in Rule 114B of Rules. (c) Uniqueness of PAN For achieving objective of one PAN to one assessee, it is required to maintain uniqueness of PAN. uniqueness of PAN is achieved by conducting de-duplication check on all already existing allotted PAN against data furnished by new applicant. Under existing system of PAN only demographic data is captured. De-duplication process is carried out using Phonetic Algorithm whereby Phonetic PAN (PPAN) is created in respect of each applicant using data of applicant s name, father s name, date of birth, 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 PAN holders, 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 application of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 76 above-mentioned de-duplication process. While allotment of multiple PAN to one person has risk of diversion of income of person into several PANs resulting in evasion of tax, 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 (200 out of 1,00,000 PAN applications) is done on random basis which is quite less. In case of Aadhaar, 100% verification is possible due to availability of on-line Aadhaar authentication service provided by UIDAI. Aadhaar seeding in PAN database will make PAN allotment process more robust. (e) Seeding of Aadhaar number into PAN database will allow robust way of de-duplication as Aadhaar number is de-duplicated using biometric attributes of fingerprints and iris images. instance of duplicate Aadhaar is almost non-existent. Further seeking of Aadhaar will allow Income Tax Department to weed out any undetected duplicate PANs. It will also facilitate resolution of cases of one PAN allotted to multiple persons. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 77 59) After stating aforesaid purpose, rational and benefits, learned Attorney General submitted that main provision is not violative of any constitutional rights of petitioners. According to him, provision was not discriminatory at all inasmuch as it was passed on reasonable classification, 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 objective sought to be achieved in view of 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: 60) 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. 61) This Court in case of PUCL v. Union of India28 has approved recommendations of High Powered Committee headed by Justice D.P. Wadhwa, which recommended linking of Aadhaar 28 (2011) 14 SCC 331 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 78 with PDS and encouraged State Governments to adopt same. 62) This Court in State of Kerala & others vs. President, Parents Teachers Association, SNVUP and Others 29 has directed use of Aadhaar for checking bogus admissions in schools with following observations: 18. We are, however, inclined to give direction to Education Department, State of Kerala to forthwith give effect to circular dated 12.10.2011 to issue UID Card to all school children and follow guidelines and directions contained in their circular. Needless to say, Government can always adopt, in future, better scientific methods to curb such types of bogus admissions in various aided schools. 63) While monitoring PILs relating to night shelters for homeless and right to food through public distribution system, this Court has lauded and complimented efforts of State Governments for inter alia carrying out bio-metric identification of head of family of each household to eliminate fictitious, bogus and ineligible BPL/AAY household cards. 64) two Judge Bench of this court in People s Union for Civil Liberties (PDS Matter) v. Union of India & Ors.30 has held that computerisation is going to help public distribution system in country in big way and encouraged and endorsed 29 (2013) 2 SCC 705 30 (2013) 14 SCC 368 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 79 digitisation of database including bio-metric identification of beneficiaries. In fact, this Court had requested Mr. Nandan Nilekani to suggest ways in which computerisation process of PDS can be expedited. 65) In case of People s Union for Civil Liberties v. Union of India & Ors.31, this Court has also endorsed bio-metric identification of homeless persons so that benefits like supply of food and kerosene oil available to persons who are below poverty line can be extended to correct beneficiaries. 66) In case of Lokniti Foundation v. Union of India & Ors.32, this Court has disposed of writ petition while approving Aadhaar based verification of existing and new mobile number subscribers and upon being satisfied that effective process has been evolved to ensure identity verification. 67) Mr. Sengupta, learned counsel arguing on behalf of UIDAI, made additional submissions specifically answering doctrine of proportionality argument advanced by Mr. Datar as well as on aspect of informational self-determination. His submissions in this behalf were that proportionality should not be read into Article 14 of Constitution and in any case no proportionality or other 31 (2010) 5 SCC 318 32 Writ Petition (C) No. 607 of 2016 decided on February 06, 2017 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 80 Article 14 violation had been made out in instant case. He also argued that there is no absolute right to informational self-determination; to extent such right may exist it is part of Right to Privacy whose very existence contours is before Constitution Bench of this Court. 68) Adverting to doctrine of proportionality, he referred to judgments of this Court in Modern Dental College and Research Centre33 wherein this doctrine is explained and applied and submitted that doctrine is applied only in context of Article 19(1)(g) and not Article 14 of Constitution. He pointed out that proportionality is not governing law even in United Kingdom for claims analogous to Article 14 of 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 structure of Article 19, submission of Mr. Sengupta was that freedoms which were enlisted under Article 19(1) were not 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 33 Footnote 7 above Writ Petition (Civil) No. 247 of 2017 & Ors. Page 81 particular measure violated any of freedoms or was reasonable restriction, balancing exercise was to be done by courts and this balancing exercise brings element of proportionality. However, this was not envisaged in Article 14 at all. 69) Coming to impugned provision and referring to penal consequences provided in proviso to Section 139AA(2), he argued that test of whether penalty is proportionate is not same as doctrine of proportionality. Proportionate penalty is incident of arbitrariness whereas there cannot be any arbitrariness qua statute. He also submitted that on facts penalty provided in impugned provision is deemed to be same as that for not filing income tax return with valid PAN. He also argued that there was no violation of Article 14 inasmuch as classification had reasonable nexus with object enshrined in impugned provision. It was open to Legislature to determine decrease of harm and act accordingly and Legislature does not have to tackle problem 100% for it to have rational nexus. Since individual assessees are prone to problem and financial frauds using fake PAN, whether individually or in guise of legal persons, Aadhaar aims at tackling problem Writ Petition (Civil) No. 247 of 2017 & Ors. Page 82 which exhibited rational nexus with object. According to Mr. Sengupta, there was no discriminatory object inasmuch as object is to weed out duplicate PANs that allow financial and tax fraud. Therefore, provision is not discriminatory in nature. 70) Dealing with argument of right to informational self-determination, learned counsel submitted that as matter of current practice in India, no absolute right to determine what information about oneself one wants to disclose; several pieces of personal information are required by law. perils of comparative law in merely transplanting from German law; need to develop Indian understanding of privacy and self-determination in Indian context. Even in German law, judgment quoted by petitioner does not demonstrate untrammelled Right to Privacy or information self-determination. world over, information over oneself is most critical element of privacy; contours of which are to be determined by Constitution Bench. Caveat 71) Before we enter into discussion and weigh merits of arguments addressed on both sides, one aspect needs to be made absolutely clear, though it has been hinted earlier as well. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 83 Conscious of fact that challenge to Aadhaar scheme/legislation on ground that it was violative of Article 21 of Constitution is pending before Constitution Bench and, therefore, this Bench could not have decided that issue, counsel for petitioners had submitted that they would not be pressing issue of Right to Privacy. Notwithstanding same, it was argued by Mr. Divan, though in process Mr. Divan emphasised that he was touching upon other facets of Article 21. Likewise, Mr. Salman Khurshid while arguing that impugned provision was violative of Article 21, based his submission on Right to Human Dignity as facet of Article 21. He also emphasised that 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 petitioners overlap with privacy issues as different aspects of Article 21 of Constitution. Right to Let Alone has shades of Right to Privacy and it is so held by Court in R. Rajagopal & Anr. v. State of Tamil Nadu & Ors.34: 26. We may now summarise broad principles flowing from above discussion: (1) right to privacy is implicit in right to life and liberty guaranteed to citizens of this country by Article 21. It is right to be let alone . citizen has right to safeguard privacy of his own, his family, 34 (1994) 6 SCC 632 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 84 marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating right to privacy of person concerned and would be liable in action for damages. Position may, however, be different, if person voluntarily thrusts himself into controversy or voluntarily invites or raises controversy. (2) rule aforesaid is subject to exception, that any publication concerning aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for reason that once matter becomes matter of public record, right to privacy no longer subsists and it becomes legitimate subject for comment by press and media among others. We are, however, of opinion that in interests of decency [Article 19(2)] exception must be carved out to this rule, viz., female who is victim of sexual assault, kidnap, abduction or like offence should not further be subjected to indignity of her name and incident being publicised in press/media. (3) There is yet another exception to rule in (1) above indeed, this is not exception but independent rule. In case of public officials, it is obvious, right to privacy, or for that matter, remedy of action for damages is simply not available with respect to their acts and conduct relevant to discharge of their official duties. This is so even where publication is based upon facts and statements which are not true, unless official establishes that publication was made (by defendant) with reckless disregard for truth. In such case, it would be enough for defendant (member of press or media) to prove that he acted after reasonable verification of facts; it is not necessary for him to prove that what he has written is true. Of course, where publication is proved to be false and actuated by malice or personal animosity, defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to discharge of his duties, public official enjoys same protection as any other citizen, Writ Petition (Civil) No. 247 of 2017 & Ors. Page 85 as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of Constitution of India, represent exceptions to this rule. (4) So far as Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain suit for damages for defaming them. (5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having force of law does not bind press or media. (6) There is no law empowering State or its officials to prohibit, or to impose prior restraint upon press/media. So is Right to Informational Self Determination, as specifically spelled out by US Supreme Court in United States Department of Justice v. Reporters Committee for Freedom of Press35. Because of aforesaid reasons and keeping in mind principle of judicial discipline, we have made conscious choice not to deal with these aspects and it would be for parties to raise these issues before Constitution Bench. Accordingly, other arguments based on Articles 14 and 19 of Constitution as well as competence of legislature to enact such law are being examined. 72) We have deeply deliberated on arguments advanced by 35 489 U.S. 749 (1989) Writ Petition (Civil) No. 247 of 2017 & Ors. Page 86 various counsel appearing for different petitioners as well as counter submissions made by counsel appearing on behalf of State. Undoubtedly, issue that confronts us is of seminal importance. In recent times, issues about proprietary, significance, merits and demerits have generated lots of debate among intelligentia. Government claims that this provision is introduced in Statute to achieve laudable objectives and it is in public interest. It is felt that this technology can solve many development challenges. petitioners argue that move is impermissible as it violates their fundamental rights. It falls in category of, what Ronald Dworkin calls, hard cases . Nevertheless, duty of court is to decide such cases as well and give better decision. While undertaking this exercise of judicial review, let us first keep in mind width and extent of power of judicial review of legislative action. Court cannot question wisdom of Legislature in enacting particular law. It is required to act within domain available to it. Scope of Judicial Review of Legislative Act 73) Under Constitution, Supreme Court as well as High Courts are vested with power of judicial review of not only administrative acts of executive but legislative enactments Writ Petition (Civil) No. 247 of 2017 & Ors. Page 87 passed by legislature as well. This power is given to High Courts under Article 226 of Constitution and to Supreme Court under Article 32 as well as Article 136 of Constitution. At same time, parameters on which power of judicial review of administrative act is to be undertaken are different from parameters on which validity of legislative enactment is to be examined. No doubt, in exercises of its power of judicial review of legislative action, Supreme Court, or for that matter, High Courts can declare law passed by Parliament or State Legislature as invalid. However, power to strike down primary legislation enacted by Union or State Legislatures is on limited grounds. Courts can strike down legislation either on basis that it falls foul of federal distribution of powers or that it contravenes fundamental rights or other Constitutional rights/provisions of Constitution of India. No doubt, since Supreme Court and High Courts are treated as ultimate arbiter in all matters involving interpretation of Constitution, it is Courts which have final say on questions relating to rights and whether such right is violated or not. basis of aforesaid statement lies in Article 13(2) of Constitution which proscribes State from making any law which takes away or abridges right conferred by Part III , enshrining Writ Petition (Civil) No. 247 of 2017 & Ors. Page 88 fundamental rights. It categorically states that any law made in contravention thereof, to extent of contravention, be void. 74) We can also take note of Article 372 of 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.- (1) Notwithstanding repeal by this Constitution of enactments referred to in article 395 but subject to other provisions of this Constitution, all law in force in territory of India immediately before commencement of this Constitution shall continue in force therein until altered or repealed or amended by competent Legislature or other competent authority. In context of judicial review of legislation, this provision gives indication that all laws enforced prior to commencement of Constitution can be tested for compliance with provisions of Constitution by Courts. Such power is recognised by this Court in Union of India & Ors. v. Sicom Limited & Anr.36. In that judgment, it was also held that since term laws , as per Article 372, includes common law power of judicial review of legislation, which is part of common law applicable in India before Constitution came into force, would continue to vest in Indian courts. 36 (2009) 2 SCC 121 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 89 75) With this, we advert to discussion on grounds of judicial review that are available to adjudge validity of piece of legislation passed by Legislature. We have already mentioned that particular law or provision contained in statute can be invalidated on two grounds, namely: (i) it is not within competence of Legislature which passed law, and/or (ii) it is in contravention of any of fundamental rights stipulated in Part III of Constitution or any other right/ provision of Constitution. These contours of judicial review are spelled out in clear terms in case of Rakesh Kohli37, and particularly following paragraphs: 16. statute enacted by Parliament or State Legislature cannot be declared unconstitutional lightly. court must be able to hold beyond any iota of doubt that violation of constitutional provisions was so glaring that legislative provision under challenge cannot stand. Sans flagrant violation of constitutional provisions, law made by Parliament or 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 appropriate legislature does not have competence to make law, and (ii) that it does not (sic) take away or abridge any of fundamental rights enumerated in Part III of Constitution or any other constitutional provisions. In McDowell and Co. while dealing with challenge to enactment based on Article 14, this Court stated in para 43 of Report as follows: (SCC pp. 737-38) 43. law made by Parliament or 37 Footnote 20 above Writ Petition (Civil) No. 247 of 2017 & Ors. Page 90 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 fundamental rights guaranteed in Part III of Constitution or of any other constitutional provision. There is no third ground. if enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of equality clause/equal protection clause enshrined therein. Similarly, if enactment is challenged as violative of any of 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 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. Some or other constitutional infirmity has to be found before invalidating Act. enactment cannot be struck down on ground that court thinks it unjustified. Parliament and legislatures, composed as they are of representatives of people, are supposed to know and be aware of needs of people and what is good and bad for them. court cannot sit in judgment over their wisdom. (emphasis supplied) 26. In Mohd. Hanif Quareshi, Constitution Bench further observed that there was always presumption in favour of constitutionality of enactment and burden is upon him, who attacks it, to show that there has been clear violation of constitutional principles. It stated in para 15 of Report as under: (AIR pp. 740-41) 15. courts, it is accepted, must presume that legislature understands and correctly appreciates needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that legislature is free to recognise degrees of harm and may confine its restrictions to Writ Petition (Civil) No. 247 of 2017 & Ors. Page 91 those cases where need is deemed to be clearest and finally that in order to sustain presumption of constitutionality court may take into consideration matters of common knowledge, matters of common report, history of times and may assume every state of facts which can be conceived existing at time of legislation. 27. above legal position has been reiterated by Constitution Bench of this Court in Mahant Moti Das v. S.P. Sahi. 28. In Hamdard Dawakhana v. Union of India, inter alia, while referring to earlier two decisions, namely, Bengal Immunity Co. Ltd. and Mahant Moti Das, it was observed in para 8 of Report as follows: (Hamdard Dawakhana case, AIR p. 559): 8. Therefore, when constitutionality of enactment is challenged on ground of violation of any of articles in Part III of Constitution, ascertainment of its true nature and character becomes necessary i.e. its subject-matter, area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all factors such as history of legislation, purpose thereof, surrounding circumstances and conditions, mischief which it intended to suppress, remedy for disease which legislature resolved to cure and true reason for remedy . In Hamdard Dawakhana, Court also followed statement of law in Mahant Moti Das and two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India and State of Bombay v. F.N. Balsara and reiterated principle that presumption was always in favour of constitutionality of enactment. xx xx xx 30. well-known principle that in field of taxation, legislature enjoys greater latitude for Writ Petition (Civil) No. 247 of 2017 & Ors. Page 92 classification, has been noted by this Court in long line of cases. Some of these decisions are Steelworth Ltd. v. State of Assam; Gopal Narain v. State of U.P.; Ganga Sugar Corpn. Ltd. v. State of U.P.; R.K. Garg v. Union of India; and State of W.B. v. E.I.T.A. India Ltd. 76) Again in Ashok Kumar Thakur v. Union of India & Ors.38, this Court made following pertinent observations: 219. legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of legislation is whether legislature has legislative competence or whether legislation is ultra vires provisions of Constitution. If any of provisions of legislation violates fundamental rights or any other provisions of Constitution, it could certainly be valid ground to set aside legislation by invoking power of judicial review. legislation could also be challenged as unreasonable if it violates principles of equality adumbrated in our Constitution or it unreasonably restricts fundamental rights under Article 19 of Constitution. legislation cannot be challenged simply on ground of unreasonableness because that by itself does not constitute ground. validity of constitutional amendment and validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India said: (SCC p. 660, para 149) 149. if question brought before court is purely political question not involving determination of any legal or constitutional right or obligation, court would not entertain it, since court is concerned only with adjudication of legal rights and liabilities. Therefore, plea of petitioner that legislation itself was intended to please section of community as part of vote catching mechanism is 38 (2008) 6 SCC 1 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 93 not legally acceptable plea and it is only to be rejected. 77) Furthermore, it also needs to be specifically noted that this Court emphasised that apart from aforesaid two grounds no third ground is available to invalidate any piece of legislation. In this behalf it would be apposite to reproduce following observations from State of A.P. & Ors. v. McDowell & Co. & Ors.39, which is judgment rendered by three Judge Bench of this Court: 43...A law made by Parliament or 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 fundamental rights guaranteed in Part III of Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into discussion of concepts of procedural unreasonableness and substantive unreasonableness concepts inspired by decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular concept of substantive due process have proved to be of unending controversy, latest thinking tending towards severe curtailment of this ground (substantive due process). main criticism against ground of substantive due process being that it seeks to set up courts as arbiters of wisdom of legislature in enacting particular piece of legislation. It is enough for us to say that by whatever name it is characterised, ground of invalidation must fall within four corners of two grounds mentioned above. In other words, say, if enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of equality clause/equal protection clause enshrined therein. Similarly, if enactment is challenged as violative of any of fundamental rights guaranteed by clauses 39 (1996) 3 SCC 709 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 94 (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of 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. Some or other constitutional infirmity has to be found before invalidating Act. enactment cannot be struck down on ground that court thinks it unjustified. Parliament and legislatures, composed as they are of representatives of people, are supposed to know and be aware of needs of people and what is good and bad for them. court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in case of administrative action, 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 Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174] which decision has been accepted by this Court as well). applicability of doctrine of proportionality even in administrative law sphere is yet debatable issue. (See opinions of Lords Lowry and Ackner in R. v. Secy. of State for Home Deptt., ex p Brind [1991 AC 696 : (1991) 1 All ER 720] AC at 766-67 and 762.) It would be rather odd if enactment were to be struck down by applying said principle when its applicability even in administrative law sphere is not fully and finally settled... 78) Another aspect in this context, which needs to be emphasized, is that legislation cannot be declared unconstitutional on ground that it is arbitrary inasmuch as examining as to whether particular Act is arbitrary or not implies value judgment and courts do not examine wisdom of legislative choices and, therefore, cannot undertake this exercise. This was so recognised in recent judgment of this Court Rajbala & Ors. v. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 95 State of Haryana & Ors.40 wherein this Court held as under: 64. From above extract from McDowell & Co. case it is clear that courts in this country do not undertake task of declaring piece of legislation unconstitutional on ground that legislation is arbitrary since such exercise implies value judgment and courts do not examine wisdom of legislative choices unless legislation is otherwise violative of some specific provision of Constitution. To undertake such examination would amount to virtually importing doctrine of substantive due process employed by American Supreme Court at earlier point of time while examining constitutionality of Indian legislation. As pointed out in above extract, even in United States doctrine is currently of doubtful legitimacy. This Court long back in A.S. Krishna v. State of Madras declared that doctrine of due process has no application under Indian Constitution As pointed out by Frankfurter, J., arbitrariness became mantra. 65. For above reasons, we are of opinion that it is not permissible for this Court to declare statute unconstitutional on ground that it is arbitrary . 79) Same sentiments were expressed earlier by this Court in K.T. Plantation Private Limited & Anr.41 in following words: 205. Plea of unreasonableness, arbitrariness, proportionality, etc. always raises element of subjectivity on which court cannot strike down statute or statutory provision, especially when right to property is no more fundamental right. Otherwise court will be substituting its wisdom to that of legislature, which is impermissible in our constitutional democracy. fortiorari, law cannot be invalidated on ground that Legislature did not apply its mind or it was prompted by some 40 (2016) 2 SCC 445 41 Footnote 19 above. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 96 improper motive. 80) It is, thus, clear that in exercise of power of judicial review, Indian Courts are invested with powers to strike down primary legislation enacted by Parliament or State legislatures. However, while undertaking this exercise of judicial review, same is to be done at three levels. In first stage, Court would examine as to whether impugned provision in legislation is compatible with fundamental rights or Constitutional provisions (substantive judicial review) or it falls foul of 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 other hand, if it is found that Legislature lacks competence as subject legislated was not within powers assigned in list in VII Schedule, no further enquiry is needed and such law is to be declared as ultravires Constitution. However, while undertaking substantive judicial review, if it is found that impugned provision appears to be violative of fundamental rights or other Constitutional rights, Court reaches second stage of review. At this second phase of enquiry, Court is supposed to undertake exercise as to whether impugned provision can still be saved by reading it Writ Petition (Civil) No. 247 of 2017 & Ors. Page 97 down so as to bring it in conformity with Constitutional provisions. If that is not achievable then enquiry enters third stage. If offending portion of statute is severable, it is severed and Court strikes down impugned provision declaring same as unconstitutional. 81) Keeping in view aforesaid parameters we, at this stage, we want to devote some time discussing arguments of petitioners based on concept of limited government . Concent of Limited Government and its impact on powers of Judicial Review 82) There cannot be any dispute about manner in which Mr. Shyam Divan explained concept of limited Government in his submissions. Undoubtedly, Constitution of India, as instrument of governance of State, delineates functions and powers of each wing of State, namely, Legislature, Judiciary and Executive. It also enshrines principle of separation of powers which mandates that each wing of State has to function within its own domain and no wing of State is entitled to trample over function assigned to other wing of State. This fundamental document of governance also contains principle of federalism wherein Union is assigned Writ Petition (Civil) No. 247 of 2017 & Ors. Page 98 certain powers and likewise powers of State are also prescribed. In this context, Union Legislature, i.e. Parliament, as well as State Legislatures are given specific areas in respect of which they have power to legislate. That is so stipulated in Schedule VII of Constitution wherein List I enumerates subjects over which Parliament has dominion, List II spells out those areas where State Legislatures have power to make laws while List III is Concurrent List which is accessible both to Union as well as State Governments. Scheme pertaining to making laws by Parliament as well as by Legislatures of State is primarily contained in Articles 245 to 254 of Constitution. Therefore, it cannot be disputed that each wing of State to act within sphere delineated for it under Constitution. It is correct that crossing these limits would render action of State ultra vires Constitution. When it comes to power of taxation, undoubtedly, power to tax is treated as sovereign power of any State. However, there are constitutional limitations briefly described above. In nine Judge Bench decision of this Court in Jindal Stainless Ltd. & Anr. v. State of Haryana & Ors.42 discussion on these constitutional limitations are as follows: 42 (2016) 11 Scale 1 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 99 20. Exercise of sovereign power is, however, subject to Constitutional limitations especially in federal system like ours where States also to extent permissible exercise power to make laws including laws that levy taxes, duties and fees. That power to levy taxes is subject to constitutional limitations is no longer res-integra. Constitution Bench of this Court has in Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109 recognised that in India Centre and States both enjoy exercise of sovereign power, to extent Constitution confers upon them that power. This Court declared: 56 We would not like, however, to embark upon any theory of police power because Indian Constitution does not recognise police power as such. But we must recognise exercise of Sovereign power which gives State sufficient authority to enact any law subject to limitations of Constitution to discharge its functions. Hence, Indian Constitution as sovereign State has power to legislate on all branches except to limitation as to division of powers between Centre and States and also subject to fundamental rights guaranteed under Constitution. Indian States, between Centre and States, has sovereign power. sovereign power is plenary and inherent in every sovereign State to do all things which promote health, peace, morals, education and good order of 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 public what necessity is to individual. Right to tax or levy impost must be in accordance with provisions of Constitution. 21. What then are Constitutional limitations on power of State legislatures to levy taxes or for that matter enact legislations in field reserved for them under relevant entries of List II and III of Seventh Schedule. first and foremost of these limitations appears in Article 13 of Constitution of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 100 India which declares that all laws in force in territory of India immediately before commencement of Constitution are void to extent they are inconsistent with provisions of Part III dealing with fundamental rights guaranteed to citizens. It forbids States from making any law which takes away or abridges, any provision of Part III. Any law made in contravention of said rights shall to extent of contravention be void. There is no gain saying that power to enact laws has been conferred upon Parliament subject to above Constitutional limitation. So also in terms of Article 248, residuary power to impose tax not otherwise mentioned in Concurrent List or State List has been vested in Parliament to exclusion of State legislatures, and States' power to levy taxes limited to what is specifically reserved in their favour and no more. 22. Article 249 similarly empowers Parliament to legislate with respect to matter in State List for national interest provided Council of States has declared by resolution supported by not less than two-thirds of members present and voting that it is necessary or expedient in national interest to do so. power is available till such time any resolution remains in force in terms of Article 249(2) and proviso thereunder. 23. Article 250 is yet another provision which empowers Parliament to legislate with respect to any matter in State List when there is proclamation of emergency. In event of inconsistency between laws made by Parliament under Articles 249 and 250, and laws made by legislature of States, law made by Parliament shall, to extent of inconsistency, prevail over law made by State in terms of Article 251. 24. power of Parliament to legislate for two or more States by consent, in regard to matters not otherwise within power of Parliament is regulated by Article 252, while Article 253 starting with non-obstante clause empowers Parliament to make any law for whole country or any part of territory of India for implementing any treaty, agreement or convention with any other country or Writ Petition (Civil) No. 247 of 2017 & Ors. Page 101 countries or any decision made at any international conference, association or other body. 83) Mr. Divan, however, made earnest endeavour to further broaden this concept of limited Government by giving altogether different slant. He submitted that there are certain things that States simply cannot do because action fundamentally alters relationship between citizens and State. In this hue, he submitted that it was impermissible for State to undertake exercise of collection of bio-metric data, including fingerprints and storing at central depository as it puts State in extremely dominant position in relation to individual citizens. He also submitted that it will put State in position to target individual and engage in surveillance thereby depriving or withholding enjoyment of his rights and entitlements, which is totally impermissible in country where governance of State of founded on concept of limited Government . Again, this concept of limited government is woven around Article 21 of Constitution. 84) Undoubtedly, we are in era of liberalised democracy. In democratic society governed by Constitution, there is strong trend towards Constitutionalisation of democratic politics, where actions of democratic elected Government are judged Writ Petition (Civil) No. 247 of 2017 & Ors. Page 102 in light of Constitution. In this context, judiciary assumes role of protector of Constitution and democracy, being ultimate arbiter in all matters involving interpretation of Constitution. 85) Having said so, when it comes to exercising power of judicial review of legislation, scope of such power has to be kept in mind and power is to be exercised within limited sphere assigned to judiciary to undertake judicial review. This has already been mentioned above. Therefore, unless petitioner demonstrates that Parliament, in enacting impugned provision, has exceeded its power prescribed in Constitution or this provision violates any of provision, argument predicated on limited governance will not succeed. One of aforesaid ingredients needs to be established by petitioners in order to succeed. 86) Even in case of Thakur Bharath Singh43 relied upon by Mr. Divan, wherein executive order was passed imposing certain restrictions requiring respondent therein to reside at particular place as specified in order, which was passed in exercise of powers contained under Section 3(1)(b) of M.P. 43 Footnote 9 above Writ Petition (Civil) No. 247 of 2017 & Ors. Page 103 Public Security Act, 1959, Court struck down and quashed order only after it found that restrictions contained therein were unreasonable and violative of fundamental freedom guaranteed under Article 19(1)(d) and (e) of Constitution of India. 87) With this, we proceed to consider arguments on which vires of impugned provisions are questioned: Argument of Legislative Competence 88) It is not denied by petitioners that having regard to provisions of Article 246 of Constitution and Entries 82 and 97 of List I, Parliament has requisite competence to enact impugned legislation. However, submission of petitioners was that impugned legislative provision was made as per which enrolment under Aadhaar had become mandatory for income tax assessees, whereas this Court has passed various orders repeatedly emphasising that enrolment for Aadhaar card has to be voluntary. On this basis, argument is that Legislature lacked authority to pass law contrary to judgments of this Court, without removing basis of those judgments. It was also argued that even Aadhaar Act was voluntary in nature and basis of judgments of this Court could be taken away only by making enrolment under Writ Petition (Civil) No. 247 of 2017 & Ors. Page 104 Aadhaar Act compulsory, which was not done. 89) Before proceeding to discuss this argument, one aspect of matter needs clarification. There was debate as to whether Aadhaar Act is voluntary or even that Act makes enrolment under Aadhaar mandatory. 90) First thing that is to be kept in mind is that Aadhaar Act is enacted to enable Government to identify individuals for delivery of benefits, subsidies and services under various welfare schemes. This is so mentioned in Section 7 of Aadhaar Act which states that proof of Aadhaar number is necessary for receipt of such subsidies, benefits and services. At same time, it cannot be disputed that once person enrols himself and obtains Aadhaar number as mentioned in Section 3 of Aadhaar Act, such Aadhaar number can be used for many other purposes. In fact, this Aadhaar number becomes Unique Identity (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 purpose of obtaining benefits, proof of Aadhaar card is necessary as per Section 7 of Act. Proviso to Section 7 stipulates that if Aadhaar number is not assigned to enable individual, he shall be offered alternate and viable Writ Petition (Civil) No. 247 of 2017 & Ors. Page 105 means of identification for delivery of subsidy, benefit or service. According to petitioners, this proviso, with acknowledges alternate and viable means of identification, and therefore makes Aadhaar optional and voluntary and enrolment is not necessary even for purpose of receiving subsidies, benefits and services under various schemes of Government. respondents, however, interpret proviso differently and there plea is that words if Aadhaar number is not assigned to 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 only by way of interim measure till Aadhaar number is assigned, which is otherwise compulsory for obtaining certain benefits as stated in Section 7 of Aadhaar Act. Fact remains that as per Government and UIDAI itself, 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. 91) Thus, enrolment under Aadhaar is voluntary. However, it is moot question as to whether for obtaining benefits as prescribed Writ Petition (Civil) No. 247 of 2017 & Ors. Page 106 under Section 7 of Aadhaar Act, it is mandatory to give Aadhaar number or not is debatable issue which we are not addressing as this very issue is squarely raised which is subject matter of other writ petition filed and pending in this Court. 92) On one hand, enrollment under Aadhaar card is voluntary, however, for purposes of Income Tax Act, Section 139AA makes it compulsory for assessees to give Aadhaar number which means insofar as income tax assessees are concerned, they have to necessarily enroll themselves under Aadhaar Act and obtain Aadhaar number which will be their identification number as that has become requirement under Income Tax Act. contention that since enrollment under Aadhaar Act is voluntary, it cannot be compulsory under Income Tax Act, cannot be countenanced. As already mentioned above, purpose for enrollment under Aadhaar Act is to avail benefits of various welfare schemes etc. as stipulated in Section 7 of Aadhaar Act. Purpose behind Income Tax Act, on other hand, is entirely different which has already been discussed in detail above. For achieving said purpose, viz., to curb blackimongy, money laundering and tax evasion etc., if Parliament chooses to make provision mandatory under Income Tax Act, Writ Petition (Civil) No. 247 of 2017 & Ors. Page 107 competence of Parliament cannot be questioned on ground that it is impermissible only because under Aadhaar Act, provision is directory in nature. It is prerogative of Parliament to make particular provision directory in one statute and mandatory/compulsory in other. That by itself cannot be ground to question competence of legislature. After all, Aadhaar Act is not mother Act. Two laws, i.e., Aadhaar Act, on one hand, and law in form of Section 139AA of Income Tax Act, on other hand, are two different stand alone provisions/laws and validity of one cannot be examined in light of provisions of other Acts. In Municipal Corporation of Delhi v. Shiv Shanker44, if 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 surface. We reproduce hereunder discussion to aforesaid aspect contained in said judgment: 5. ... It is only when consistent body of law cannot be maintained without abrogation of previous law that plea of implied repeal should be sustained. To determine if later statutory provision repeals by implication earlier one it is accordingly necessary to closely scrutinise and consider true meaning and effect both of earlier and later statute. Until this 44 (1971) 1 SCC 442 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 108 is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them. meaning, scope and effect of two statutes, as discovered on scrutiny, determines legislative intent as to whether earlier law shall cease or shall only be supplemented. If 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 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 irreconcilable conflict between new provision and prior statute relating to same subject-matter, that former, being later expression of legislature, may be held to prevail, prior law yielding to extent of conflict. same rule of irreconcilable repugnancy controls implied repeal of general by special statute. subsequent provision treating phase of same general subject-matter in more minute way may be intended to imply repeal protanto of repugnant general provision with which it cannot reasonably co-exist. When there is no inconsistency between general and special statute later may well be construed as supplementary. 93) In view of above, we are not impressed by contention of petitioners that two enactments are contradictory with each other. harmonious reading of two enactments would clearly suggests that whereas enrollment of Aadhaaar is voluntary when it comes to taking benefits of various welfare schemes even if it is presumed that requirement of Section 7 of Aadhaar Act that it is necessary to provide Aadhaar number to avail benefits of schemes and services, it is upto person to avail those benefits Writ Petition (Civil) No. 247 of 2017 & Ors. Page 109 or not. On other hand, purpose behind enacting Section 139AA is to check menace of black money as well as money laundering and also to widen income tax net so as to cover those persons who are evading payment of tax. 94) Main emphasis, however, is on plea that Parliament or any State legislature cannot pass law that overrules judgment thereby nullifying said decision, that too without removing basis of decision. This argument appears to be attractive inasmuch as few orders are passed by this Court in pending writ petitions which are to effect that enrollment of Aadhaar would be voluntary. However, it needs to be kept in mind that orders have been passed in petitions where Aadhaar scheme floated as executive/administrative measure has been challenged. In those cases, said orders are not passed in case where Court was dealing with statute passed by Parliament. Further, these are interim orders as Court was of opinion that till matter is decided finally in context of Right to Privacy issue, implementation of said Aadhaar scheme would remain voluntary. In fact, main issue as to whether Aadhaar card scheme whereby biometric data of individual is collected violates Right to Privacy and, therefore, is offensive of Article 21 of Constitution or not is yet to be Writ Petition (Civil) No. 247 of 2017 & Ors. Page 110 decided. In process, Constitution Bench is also called upon to decide as to whether Right to Privacy is part of Article 21 of Constitution at all. Therefore, no final decision has been taken. In situation like this, it cannot be said that Parliament is precluded from or it is rendered incompetent to pass such law. That apart, argument of petitioners is that basis on which aforesaid orders are passed has to be removed, which is not done. According to petitioners, it could be done only by making Aadhaar Act compulsory. It is difficult to accept this contention for two reasons: first, when orders passed by this Court which are relied upon by petitioners were passed when Aadhaar Act was not even enacted. Secondly, as already discussed in detail above, Aadhaar Act and law contained in Section 139AA of Income Tax Act deal with two different situations and operate in different fields. This argument of legislature incompetence also, therefore, has fails. Whether Section 139AA of Act is discriminatory and offends Article 14 of Constitution of India? Article 14, which enshrines principle of equality as fundamental right mandates that State shall not deny to any person equality before law or equal protection of laws within territory of India. It, thus, gives right to equal Writ Petition (Civil) No. 247 of 2017 & Ors. Page 111 treatment in similar circumstances, both in privileges conferred and in liabilities imposed. In Sri Srinavasa Theatre & Ors. v. Government of Tamil Nadu & Ors.45, this Court explained that two expressions equality before law and equal protection of law do not mean same thing even if there may be much in common between them. Equality before law is dynamic concept having many facets. One facet is that there shall be no privileged person or class and that one shall be above law. Another facet is obligation upon State to bring about, through machinery of law, more equal society... For, equality before law can be predicated meaningfully only in equal society... . Court further observed that Article 14 prescribes equality before law. But fact remains that all persons are not equal by nature, attainment or circumstances, and, therefore, mechanical equality before law may result in injustice. Thus, guarantee against denial of equal protection of law does not mean that identically same rules of law should be made applicable to all persons in spite of difference in circumstances or conditions {See Chiranjit Lal Chowdhuri v. Union of India & Ors.46}. 95) varying needs of different classes or sections of people 45 (1992) 2 SCC 643 46 1950 SCR 869 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 112 require differential and separate treatment. Legislature is required to deal with diverse problems arising out of infinite variety of human relations. It must, therefore, necessarily have power of making laws to attain particular objects and, for that purpose, of distinguishing, selecting and classifying persons and things upon which its laws are to operate. principle of equality of law, thus, means not that same law should apply to everyone but that law should deal alike with all in one class; that there should be equality of treatment under equal circumstances. It means that equals should not be treated unlike and unlikes should not be treated alike. Likes should be treated alike. 96) What follows is that Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transactions by Legislature for purpose of achieving specific ends. Classification to be reasonable should fulfil following two tests: (1) It should not be arbitrary, artificial or evasive. It should be based on intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in class from others left out of it. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 113 (2) differentia adopted as basis of classification must have rational or reasonable nexus with object sought to be achieved by 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 practical needs of society and differential must have rational relation to objects sought to be achieved. Further, it does not allow any kind of arbitrariness and ensures fairness and equality of treatment. It is fonjuris of our Constitution, fountainhead of justice. Differential treatment does not per se amount to violation of Article 14 of Constitution and it violates Article 14 only when there is no reasonable basis and there are several tests to decide whether classification is reasonable or not and one of tests will be as to whether it is conducive to functioning of modern society. 97) Insofar as impugned provision is concerned, Mr. Datar had conceded that first test that of reasonable classification had been satisfied as he conceded that individual assesses form separate class and impugned provision which targeted only individual assesses would not be discriminatory on this ground. His whole Writ Petition (Civil) No. 247 of 2017 & Ors. Page 114 emphasis was that Section 139AA did not satisfy second limb of twin tests of classification as, according to him, this provision had no rational nexus with object sought to be achieved. 98) In this behalf, his submission was that if purpose of provision was to curb circulation of black money, such object was not achievable by seeing PAN with Aadhaar inasmuch as Aadhaar is only for individuals. His submission was that it is only individuals who are responsible for generating black money or money laundering. This was basis for Mr. Datar s submission. We find it somewhat difficult to accept such submission. 99) 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 measures is introduction of Aadhaar into tax regime, it cannot be denounced only because of reason that 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 same time. It is combined effect of these actions which may yield results and each individual action considered in isolation may not be sufficient. Therefore, Writ Petition (Civil) No. 247 of 2017 & Ors. Page 115 rationality of particular measure cannot be challenged on ground that it has no nexus with objective to be achieved. Of course, there is definite objective. For this purpose alone, individual measure cannot be ridiculed. We have already taken note of recommendations of SIT on black money headed by Justice M.B. Shah. We have also reproduced measures suggested by 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 person for entering into finance/business transactions etc may go long way in curbing this foul practice. That apart, even if solitary purpose of de-duplication of PAN cards is taken into consideration, that may be sufficient to meet second test of Article 14. It has come on record that 11.35 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 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 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 116 PAN cards are hardly 0.4% and, therefore, there was no need to have such provision. We cannot go by percentage figures. absolute number of such cases is 10.52 lakh, which figure, by no means, can be termed as miniscule, to harm economy and create adverse effect on 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 growth of shell companies as well. 100) Having regard to aforesaid factors, it cannot be said that there is no nexus with objective sought to be achieved. 101) Another argument predicated on Article 14 advanced by Mr. Divan was that it was discriminatory in nature as it created two classes; 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 effect of creating artificial class of those who object to Aadhaar scheme as self conscious persons. This is fallacious argument. 102) Validity of legislative act cannot be challenged by creating artificial classes by those who are objecting to said provision Writ Petition (Civil) No. 247 of 2017 & Ors. Page 117 and predicating argument of discrimination on that basis. When law is made, all those who are covered by that law are supposed to follow same. No doubt, it is right of citizen to approach Court and question constitutional validity of particular law enacted by Legislature. However, merely because section of persons opposes law, would not mean that it has become separate class by itself. Two classes, cannot be created on this basis, namely, one of those who want to be covered by scheme, and others who do not want to be covered thereby. If such proposition is accepted, every legislation would be prone to challenge on ground of discrimination. As far as plea of discrimination is concerned, it has to be raised by showing that impugned law creates two classes without any reasonable classification and treats them differently. 103) 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 same position, as varying needs of different classes of persons often require separate treatment. It is permissible for State to classify persons for legitimate purposes. Legislature is also competent to Writ Petition (Civil) No. 247 of 2017 & Ors. Page 118 exercise its discretion and make classification. In present scenario 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 reason that impugned provision is applicable only to those who are filing income tax returns. Therefore, only question would be as to whether this classification is reasonable or not. There cannot be any dispute that there is reasonable basis for differentiation and, therefore, equal protection clause enshrined in Article 14 is not attracted. What Article 14 prohibits is class legislation and not reasonable classification for purpose of legislation. All income tax asessees constitute one class and they are treated alike by impugned provision. 104) It may also be pointed out that counsel for respondents had argued that doctrine of proportionality cannot be read into Article 14 of Constitution and in support reliance has been placed on 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 Mr. Datar, learned counsel appearing for petitioner, had conceded at Bar that he had invoked doctrine of proportionality only in context of Article 19(1)(g). 47 (1974) 4 SCC 3 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 119 105) We, therefore, reject argument founded on Article 14 of Constitution. Whether impugned provision is violative of Article 19(1)(g) 106) Invocation of provisions of Article 19(1)(g) of Constitution by petitioners was in context of proviso to sub-section (2) of Section 139AA of Act which contains consequences of failure to intimate Aadhaar number 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 1st 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 date to be notified by Central Government in Official Gazette: Provided that in case of failure to intimate Aadhaar number, permanent account number allotted to person shall be deemed to be invalid and other provisions of this Act shall apply, as if person had not applied for allotment of permanent account number. 107) submission was that aforesaid penal consequence was draconian in nature and totally disproportionate to 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 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 120 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 serious consequence for failure to intimate Aadhaar number to designated authority. According to him, consequence of not having PAN card results in virtual civil death as one example given was that under Rule 114B of 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. 108) Section 139A deals with PAN. Sub-section (1) thereof requires four classes of persons to have PAN allotted. It reads as under: 139A. Permanent account number. (1) Every person, (i) if his total income or total income of any other person in respect of which he is assessable under this Act during any previous year exceeded maximum amount which is not chargeable to income-tax; or (ii) carrying on any business or profession whose total sales, turnover or gross receipts are or is likely to exceed five lakh rupees in any previous year; or (iii) who is required to furnish return of income under sub-section (4A) of section 139; or (iv) being employer, who is required to furnish Writ Petition (Civil) No. 247 of 2017 & Ors. Page 121 return of fringe benefits under section 115WD. and who has not been allotted permanent account number shall, within such time, as may be prescribed, apply to Assessing Officer for allotment of permanent account number. 109) This PAN number has to be mentioned/quoted in number of eventualities specified under sub-section (5), (5A), (5B), (5C), 5(D) and sub-section (6) of Section 139A. These provisions read as under: 5. 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 payment of any sum due under this Act; (c) quote such number in all documents pertaining to such transactions as may be prescribed by Board in interests of revenue, and entered into by him: Provided that Board may prescribe different dates for different transactions or class of transactions or for different class of persons: Provided further that person shall quote General Index Register Number till such time Permanent Account Number is allotted to such person; (d) intimate Assessing Officer any change in his address or in name and nature of his business on basis of which permanent account number was allotted to him. (5A) Every person receiving any sum or income or amount from which tax has been deducted under provisions of Chapter XVIIB, shall intimate his Writ Petition (Civil) No. 247 of 2017 & Ors. Page 122 permanent account number to person responsible for deducting such tax under that Chapter: Provided further that person referred to in this sub-section, shall intimate General Index Register Number till such time permanent account number is allotted to such person. (5B) Where any sum or income or amount has been paid after deducting tax under Chapter XVIIB, every person deducting tax under that Chapter shall quote permanent account number of person to whom such sum or income or amount has been paid by him (i) in statement furnished in accordance with provisions of sub-section (2C) of section 192; (ii) in all certificates furnished in accordance with provisions of section 203; (iii) in all returns prepared and delivered or caused to be delivered in accordance with provisions of section 206 to any income-tax authority; (iv) in all statements prepared and delivered or caused to be delivered in accordance with provisions of sub-section (3) of section 200: Provided that Central Government may, by notification in Official Gazette, specify different dates from which provisions of this sub-section shall apply in respect of any class or classes of persons: Provided further that nothing contained in sub-sections (5A) and (5B) shall apply in case of person whose total income is not chargeable to income-tax or who is not required to obtain permanent account number under any provision of this Act if such person furnishes to person responsible for deducting tax declaration referred to in section 197A in form and manner prescribed thereunder to effect that tax on his estimated total income of previous year in which such income is to be included in computing his total income will be nil. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 123 (5C) Every buyer or licensee or lessee referred to in section 206C shall intimate his permanent account number to person responsible for collecting tax referred to in that section. (5D) Every person collecting tax in accordance with provisions of section 206C shall quote permanent account number of every buyer or licensee or lessee referred to in that section (i) in all certificates furnished in accordance with provisions of sub-section (5) of section 206C; (ii) in all returns prepared and delivered or caused to be delivered in accordance with provisions of sub-section (5A) or sub-section (5B) of section 206C to income-tax authority; (iii) in all statements prepared and delivered or caused to be delivered in accordance with provisions of sub-section (3) of section 206C. (6) Every person receiving any document relating to transaction prescribed under clause (c) of sub-section (5) shall ensure that Permanent Account Number or General Index Register Number has been duly quoted in document. 110) Sub-section (8) empowers Board to make Rules, inter alia, prescribing categories of transactions in relation to which PAN is to be quoted. Rule 114B of Rules lists nature of transaction in sub-rule (a) to (r) thereof where PAN number is to be given. 111) According to petitioners, it amounts to violating their fundamental right to carry on business/profession etc. as Writ Petition (Civil) No. 247 of 2017 & Ors. Page 124 enshrined under Article 19(1)(g) of Constitution which stands infringed and, therefore, it was for State to show that restriction is reasonable and in interest of pubic under Article 19(6) of Constitution. It is in this context, principle of proportionality has been invoked by petitioners with their submission that restriction is unreasonable as it is utterly disproportionate for committing breach of Section 139AA of Act. 112) As noted above, Mr. Datar had relied upon judgment of this Court in Modern Dental College & Research Centre 48 and submitted that while applying test of proportionality, respondents were specifically required to demonstrate that measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with lesser degree of limitation (narrow tailoring) and also that there was proper relation between importance of achieving proper purpose and social importance of preventing limitation on constitutional right, (balancing two competing interests). 113) In order to consider aforesaid submissions we may bifurcate 48 Footnote 7 above Writ Petition (Civil) No. 247 of 2017 & Ors. Page 125 Section 139AA in two parts, as follows: (i) That portion of provision which requires quoting of Aadhaar number (sub-section(1)) and requirement of intimating Aadhaar number to prescribed authorities by these who are PAN holders (sub-section (2)). (ii) Consequences of failure to intimate Aadhaar number to prescribed authority by specified date. 114) Insofar as first limb of Section 139AA of Act is concerned, we have already held that it was within competence of Parliament to make provision of this nature and further that it is not offensive of Article 14 of Constitution. This requirement, per se, does not find foul with Article 19(1)(g) of Constitution either, inasmuch as, quoting Aadhaar number for purposes mentioned in sub-section (1) or intimating Aadhaar number to prescribed authority as per requirement of sub-section (2) does not, by itself, impinge upon right to carry on profession or trade, etc. Therefore, it is not violative of Article 19(1)(g) of Constitution either. In fact, that is not even argument of petitioners. Entire emphasis of petitioners submissions, while addressing arguments predicated on Article 19(1)(g) of Constitution, is on consequences that ensue in terms of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 126 proviso to sub-section (2) inasmuch as it is argued, as recorded above, that consequences provided will have effect of paralysing right to carry on business/profession. Therefore, thrust is on second part of Section 139AA of Act, which we proceed to deal with, now. 115) At outset, it may be mentioned that though PAN is issued under provisions of Act (Section 139A), its function is not limited to giving this number in income-tax returns or for other acts to be performed under Act, as mentioned in sub-sections (5), (5A), (5B), 5(C), 5(D) and 6 of Section 139A. Rule 114B of Rules mandates quoting of this PAN in various other documents pertaining to different kinds of transactions listed therein. It is for sale and purchase of immovable property valued at Rs.5 lakhs or more; sale or purchase of motor vehicle etc., while opening deposit account with sum exceeding Rs.50,000/- with banking company; while making deposit of more than Rs.50,000/- in any account with Post Office, savings bank; contract of value exceeding Rs.1 lakh for sale or purchase of securities as defined under Securities Contract (Regulation) Act, 1956; while opening account with banking company; making application for installation of telephone connection; Writ Petition (Civil) No. 247 of 2017 & Ors. Page 127 making payment to hotels and restaurants when such payment exceeds Rs.25,000/- at any one time; while purchasing bank drafts or pay orders for amount aggregating Rs.50,000/- or more during any one day, when payment in cash; payment in cash in connection with travel to any foreign country of amount exceeding Rs.25,000/- at any one time; while making payment of amount of Rs.50,000/- or more to mutual fund for purchase of its units or for acquiring shares or debentures/bonds in company or bonds issued by Reserve Bank of India; or when transaction of purchase of bullion or jewellery is made by making payment in cash to dealer above specified amount, etc. This shows that for doing many activities of day to day nature, including in course of business, PAN is to be given. Pithily put, in absence of PAN, it will not be possible to undertake any of aforesaid activities though this requirement is aimed at curbing tax evasion. Thus, if PAN of person is withdrawn or is nullified, it definitely amounts to placing restrictions on right to do business as business under Article 19(1)(g) of Act. question would be as to whether these restrictions are reasonable and, therefore, meet requirement of clause (6) of Article 19. In this context, when balancing is to be done, doctrine of proportionality can be applied, which was Writ Petition (Civil) No. 247 of 2017 & Ors. Page 128 explained in case of Modern Dental College & Research Centre49, in following manner: Doctrine of proportionality explained and applied 59. Undoubtedly, right to establish and manage educational institutions is fundamental right recognised under Article 19(1)(g) of Act. It also cannot be denied that this right is not absolute and is subject to limitations i.e. reasonable restrictions that can be imposed by law on exercise of rights that are conferred under clause (1) of Article 19. Those restrictions, however, have to be reasonable. Further, such restrictions should be in interest of general public , which conditions are stipulated in clause (6) of Article 19, as under: 19. (6) Nothing in sub-clause (g) of said clause shall affect operation of any existing law insofar as it imposes, or prevent State from making any law imposing, in interests of general public, reasonable restrictions on exercise of right conferred by said sub-clause, and, in particular, nothing in said sub-clause shall affect operation of any existing law insofar as it relates to, or prevent State from making any law relating to (i) professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) carrying on by State, or by corporation owned or controlled by State, of any trade, business, industry or service, whether to exclusion, complete or partial, of citizens or otherwise. 60. Another significant feature which can be noticed from reading of aforesaid clause is that State is empowered to make any law relating to professional or technical qualifications necessary for 49 Footnote 7 above Writ Petition (Civil) No. 247 of 2017 & Ors. Page 129 practising any profession or carrying on any occupation or trade or business. Thus, while examining as to whether impugned provisions of statute and rules amount to reasonable restrictions and are brought out in interest of general public, exercise that is required to be undertaken is balancing of fundamental right to carry on occupation on one hand and restrictions imposed on other hand. This is what is known as doctrine of proportionality . Jurisprudentially, proportionality can be defined as set of rules determining necessary and sufficient conditions for limitation of constitutionally protected right by law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub-components of proportionality which need to be satisfied [ Aharon Barak, Proportionality: Constitutional Rights and Their Limitation(Cambridge University Press 2012).], limitation of constitutional right will be constitutionally permissible if: (i) it is designated for proper purpose; (ii) measures undertaken to effectuate such limitation are rationally connected to fulfilment of that purpose; (iii) measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with lesser degree of limitation; and finally (iv) there needs to be proper relation ( proportionality stricto sensu or balancing ) between importance of achieving proper purpose and social importance of preventing limitation on constitutional right. 61. Modern theory of constitutional rights draws fundamental distinction between scope of constitutional rights, and extent of its protection. Insofar as scope of constitutional rights is concerned, it marks outer boundaries of said rights and defines its contents. extent of its protection prescribes limitations on exercises of rights within its scope. In that sense, it defines justification for limitations that can be imposed on Writ Petition (Civil) No. 247 of 2017 & Ors. Page 130 such right. 62. It is now almost accepted that there are no absolute constitutional rights and all such rights are related. As per analysis of Aharon Barak, two key elements in developing modern constitutional theory of recognising positive constitutional rights along with its limitations are notions of democracy and rule of law. Thus, requirement of proportional limitations of constitutional rights by sub-constitutional law i.e. statute, is derived from interpretation of notion of democracy itself. Insofar as Indian Constitution is concerned, democracy is treated as basic feature of Constitution and is specifically accorded constitutional status that is recognised in Preamble of Constitution itself. It is also unerringly accepted that this notion of democracy includes human rights which is cornerstone of Indian democracy. Once we accept aforesaid theory (and there cannot be any denial thereof), as fortiori, it has also to be accepted that democracy is based on balance between constitutional rights and public interests. In fact, such provision in Article 19 itself on one hand guarantees some certain freedoms in clause (1) of Article 19 and at same time empowers State to impose reasonable restrictions on those freedoms in public interest. This notion accepts modern constitutional theory that constitutional rights are related. This relativity means that constitutional licence to limit those rights is granted where such limitation will be justified to protect public interest or rights of others. This phenomenon of both right and its limitation in Constitution exemplifies inherent tension between democracy's two fundamental elements. On one hand is right's element, which constitutes fundamental component of substantive democracy; on other hand is people element, limiting those very rights through their representatives. These two constitute fundamental component of notion of democracy, though this time in its formal aspect. How can this tension be resolved? answer is that this tension is not resolved by eliminating losing facet from Constitution. Rather, tension is resolved by way of proper balancing of competing principles. This is one of expressions of multi-faceted nature of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 131 democracy. Indeed, inherent tension between democracy's different facets is constructive tension . It enables each facet to develop while harmoniously coexisting with others. best way to achieve this peaceful coexistence is through balancing between competing interests. Such balancing enables each facet to develop alongside other facets, not in their place. This tension between two fundamental aspects rights on one hand and its limitation on other hand is to be resolved by balancing two so that they harmoniously coexist with each other. This balancing is to be done keeping in mind relative social values of each competitive aspects when considered in proper context. 63. In this direction, next question that arises is as to what criteria is to be adopted for proper balance between two facets viz. rights and limitations imposed upon it by statute. Here comes concept of proportionality , which is proper criterion. To put it pithily, when law limits constitutional right, such limitation is constitutional if it is proportional. law imposing restrictions will be treated as proportional if it is meant to achieve proper purpose, and if measures taken to achieve such purpose are rationally connected to purpose, and such measures are necessary. This essence of doctrine of proportionality is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes, in following words (at p. 138): To establish that limit is reasonable and demonstrably justified in free and democratic society, two central criteria must be satisfied. First, objective, which measures, responsible for limit on Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding constitutional protected right or freedom Second party invoking Section 1 must show that means chosen are reasonable and demonstrably justified. This involves form of proportionality test Although nature of proportionality test will vary depending on circumstances, in each case courts will be required to balance interests of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 132 society with those of individuals and groups. There are, in my view, three important components of proportionality test. First, measures adopted must be rationally connected to objective. Second, means should impair as little as possible right or freedom in question Third, there must be proportionality between effects of measures which are responsible for limiting Charter right or freedom, and objective which has been identified as of sufficient importance . more severe deleterious effects of measure, more important objective must be if measure is to be reasonable and demonstrably justified in free and democratic society. 64. exercise which, therefore, is to be taken is to find out as to whether limitation of constitutional rights is for purpose that is reasonable and necessary in democratic society and such exercise involves weighing up of competitive values, and ultimately assessment based on proportionality i.e. balancing of different interests. 65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes reasonable restriction, this Court in plethora of judgments has held that expression reasonable restriction seeks to strike balance between freedom guaranteed by any of sub-clauses of clause (1) of Article 19 and social control permitted by any of clauses (2) to (6). It is held that expression reasonable connotes that limitation imposed on person in enjoyment of right should not be arbitrary or of excessive nature beyond what is required in interests of public. Further, in order to be reasonable, restriction must have reasonable relation to object which legislation seeks to achieve, and must not go in excess of that object (see P.P. Enterprises v. Union of India [P.P. Enterprises v. Union of India, (1982) 2 SCC 33). At same time, reasonableness of restriction has to be determined Writ Petition (Civil) No. 247 of 2017 & Ors. Page 133 in objective manner and from standpoint of interests of general public and not from point of view of persons upon whom restrictions are imposed or upon abstract considerations (see Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731). In M.R.F. Ltd. v. State of Kerala, (1998) 8 SCC 227, this Court held that in examining reasonableness of statutory provision one has to keep in mind following factors: (1) directive principles of State policy. (2) Restrictions must not be arbitrary or of excessive nature so as to go beyond requirement of interest of general public. (3) In order to judge reasonableness of restrictions, no abstract or general pattern or fixed principle can be laid down so as to be of universal application and same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of Constitution, prevailing conditions and surrounding circumstances. (4) just balance has to be struck between restrictions imposed and social control envisaged by Article 19(6). (5) Prevailing social values as also social needs which are intended to be satisfied by restrictions. (6) There must be direct and proximate nexus or reasonable connection between restrictions imposed and object sought to be achieved. If there is direct nexus between restrictions, and object of Act, then strong presumption in favour of constitutionality of Act will naturally arise. 116) Keeping in view aforesaid parameters and principles in mind, we proceed to discuss as to whether restrictions which would result in terms of proviso to sub-section (2) of Section 139AA of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 134 Act are reasonable or not. 117) Let us revisit objectives of Aadhaar, and in process, that of Section 139AA in particular. 118) By making use of technology, method is sought to be devised, in form of Aadhaar, whereby identity of person is ascertained in flawless manner without giving any leeway to any individual to resort to dubious practices of showing multiple identities or fictitious identities. That is why it is given nomenclature unique identity . It is aimed at securing advantages on different levels some of which are described, in brief, below: (i) In first instance, as welfare and democratic State, it becomes duty of any responsible Government to come out with welfare schemes for upliftment of poverty stricken and marginalised sections of society. This is even ethos of Indian Constitution which casts duty on State, in form of Directive Principles of State Policy , to take adequate and effective steps for betterment of such underprivileged classes. State is bound to take adequate measures to provide education, health care, employment and even cultural opportunities and social standing to these deprived and underprivileged classes. It Writ Petition (Civil) No. 247 of 2017 & Ors. Page 135 is not that Government has not taken steps in this direction from time to time. At same time, however, harsh reality is that benefits of these schemes have not reached those persons for whom that are actually meant. India has achieved significant economic growth since independence. In particular, rapid economic growth has been achieved in last 25 years, after country adopted policy of liberalisation and entered era of, what is known as, globalisation. Economic growth in last decade has been phenomenal and for many years, Indian economy grew at highest rate in world. At same time, it is also fact that in spite of significant political and economic success which has proved to be sound and sustainable, benefits thereof have not percolated down to poor and poorest. In fact, such benefits are reaped primarily by rich and upper middle classes, resulting into widening gap between rich and poor. Jean Dreze & Amartya Sen eithly narrate position as under 50: Since India s recent record of fast economic growth is often celebrated, with good reason, it is extremely important to point to fact that societal reach of economic progress in India has been remarkably limited. It is not only that income distribution has been getting more unequal in recent years (a characteristic that India shares with China), but also that rapid rise in real wages in China from which working classes have benefited greatly is not 50 Uncertain Glory : India and its Contradictions Writ Petition (Civil) No. 247 of 2017 & Ors. Page 136 matched at all by India s relatively stagnant real wages. No less importantly, public revenue generated by rapid economic growth has not been used to expand social and physical infrastructure in determined and well-planned way (in this India is left far behind by China). There is also continued lack of essential social services (from schooling and health care to provision of safe water and drainage) for huge part of population. As we will presently discuss, while India has been overtaking other countries in progress of its real income, it has been overtaken in terms of social indicators by many of these countries, even within region of South Asia itself (we go into this question more fully in Chapter 3, India in Comparative Perspective ). To point to just one contrast, even though India has significantly caught up with China in terms of GDP growth, its progress has been very much slower than China s in indicators such as longevity, literacy, child undernourishment and maternal mortality. In South Asia itself, much poorer economy of Bangladesh has caught up with and overtaken India in terms of many social indicators (including life expectancy, immunization of children, infant mortality, child undernourishment and girls schooling). Even Nepal has been catching up, to extent that it now has many social indicators similar to India s, in spite of its per capita GDP being just about one third. Whereas twenty years ago India generally had second-best social indicators among six South Asia countries (India, Pakistan, Bangladesh, Sri Lanka, Nepal and Bhutan), it now looks second worst (ahead only of problem-ridden Pakistan). India has been climbing up ladder of per capita income while slipping down slope of social indicators. It is in this context that not only sustainable development is needed which takes care of integrating growth and development, thereby ensuring that benefit of economic growth is reaped by every citizen of this country, it also becomes duty of Government in welfare State to come out with various welfare Writ Petition (Civil) No. 247 of 2017 & Ors. Page 137 schemes which not only take care of immediate needs of deprived class but also ensure that adequate opportunities are provided to such persons to enable them to make their lives better, economically as well as socially. As mentioned above, various welfare schemes are, in fact, devised and floated from time to time by Government, keeping aside substantial amount of money earmarked for spending on socially and economically backward classes. However, for various reasons including corruption, actual benefit does not reach those who are supposed to receive such benefits. One of main reasons is failure to identify these persons for lack of means by which identity could be established of such genuine needy class. Resultantly, lots of ghosts and duplicate beneficiaries are able to take undue and impermissible benefits. former Prime Minister of this country51 has gone to record to say that out of one rupee spent by Government for welfare of downtrodden, only 15 paisa thereof actually reaches those persons for whom it is meant. It cannot be doubted that with UID/Aadhaar much of malaise in this field can be taken care of. (ii) Menace of corruption and black money has reached alarming proportion in this country. It is eating into economic 51 Late Shri Rajiv Gandhi Writ Petition (Civil) No. 247 of 2017 & Ors. Page 138 progress which country is otherwise achieving. It is not necessary to go into various reasons for this menace. However, it would be pertinent to comment that even as per observations of Special Investigation Team (SIT) on black money headed by Justice M.B. Shah, one of reasons is that persons have option to quote their PAN or UID or passport number or driving licence or any other proof of identity while entering into financial/business transactions. Because of this multiple methods of giving proofs of identity, there is no mechanism/system at present to collect data available with each of independent proofs of ID. For this reason, even SIT suggested that these databases be interconnected. To same effect is recommendation of Committee headed by Chairman, CBDT on measures to tackle black money in India and abroad which also discusses problem of money-laundering being done to evade taxes under garb of shell companies by persons who hold multiple bogus PAN numbers under different names or variations of their names. That can be possible if one uniform proof of identity, namely, UID is adopted. It may go long way to check and minimise said malaise. (iii) Thirdly, Aadhaar or UID, which has come to be known as Writ Petition (Civil) No. 247 of 2017 & Ors. Page 139 most advanced and sophisticated infrastructure, may facilitate law enforcement agencies to take care of problem of terrorism to some extent and may also be helpful in checking crime and also help investigating agencies in cracking crimes. No doubt, going by aforesaid, and may be some other similarly valid considerations, it is intention of Government to give phillip to Aadhaar movement and encourage people of this country to enroll themselves under Aadhaar scheme. 119) Wether such scheme should remain voluntary or it can be made mandatory imposing compulsiveness on people to be covered by Aadhaar is different question which shall be addressed at appropriate stage. At this juncture, it is only emphasised that malafides cannot be attributed to this scheme. In any case, we are concerned with vires of Section 139AA of Income Tax Act, 1961 which is statutory provision. This Court is, thus, dealing with aspect of judicial review of legislation. Insofar as this provision is concerned, explanation of respondents in counter affidavit, which has already been reproduced above, is that primary purpose of introducing this provision was to take care of problem of multiple PAN cards obtained in fictitious names. Such multiple cards in fictitious names are Writ Petition (Civil) No. 247 of 2017 & Ors. Page 140 obtained with motive of indulging into money laundering, tax evasion, creation and channelising of black money. It is mentioned that in de-duplication exercises, 11.35 lakhs cases of duplicate PANs/fraudulent PANs have been detected. Out of these, around 10.52 lakhs pertain to individual assessees. Parliament in its wisdom thought that one PAN to one person can be ensured by adopting Aadhaar for allottment of PAN to individuals. As of today, that is only method available i.e. by seeding of existing PAN with Aadhaar. It is perceived as best method, and only robust method of de-duplication of PAN database. It is claimed by respondents that instance of duplicate Aadhaar is almost non-existent. It is also claimed that seeding of PAN with Aadhaar may contribute to widening of tax case as well, by checking tax evasions and bringing in to tax hold those persons who are liable to pay tax but deliberately avoid doing so. It would be apposite to quote following discussion by Comptroller and Auditor General in its report for year 2011: Widening of Tax Base assessee base grew over last five years from 297.9 lakh taxpayers in 2005-06 to 340.9 lakh taxpayers in 2009-10 at rate of 14.4 per cent. Department has different mechanisms available to enhance assessee base which include inspection Writ Petition (Civil) No. 247 of 2017 & Ors. Page 141 and survey, information sharing with other tax departments and third party information available in annual information returns. Automation also facilitates greater cross linking. Most of these mechanisms are available at level of assessing officers. Department needs to holistically harness these mechanisms at macro level to analyse gaps in assessee base. Permanent Account Numbers (PANs) issued upto March 2009 and March 2010 were 807.9 lakh and 958 lakh respectively. returns filled in 2008-09 and 2009-10 were 326.5 lakh and 340.9 lakh respectively. gap between PANs and number of returns filed was 617.1 lakh in 2009-10. Board needs to identify reasons for gap and use this information for appropriately enhancing assessee base. gap may be due to issuance of duplicate PAN cards and death of some PAN card holders. Department needs to put in place appropriate controls to weed out duplicate PANs and also update position in respect of deceased assessee. It is significant to note that number of PAN card holders has increased by 117.7 per cent between 2005-06 to 2009-10 whereas number of returns filed in same period has increased by 14.4 per cent only. (emphasis supplied) total direct tax collection has increased by 128.8 per cent during period 2005-06 to 2009-10. increase in tax collection was around nine times as compared to increase in assessee base. It should be constant endeavour of Department to ensure that entire assessee base, once correctly identified is duly meeting entire tax liability. However, no assurance could be obtained that tax liability on assessee is being assessed and collected properly. This comment is corroborated in para 2.4.1 of Chapter 2 of this report where we have mentioned about our detection of under charge of tax amouting to Rs. 12,842.7 crore in 19,230 cases audited during 2008-09. However, given fact that ours is test audit, Department needs to take firm steps towards strengthening controls available on existing statutes towards deriving assurance on tax collections. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 142 120) Likewise, Finance Minister in his Budget speech in February, 2013 described extent of tax evasion and offering lesser income tax than what is actually due thereby labelling India as tax known compliance, with following figures: India s tax to GDP ratio is very law, and proportion of direct tax to indirect tax is not optional from view point of social justice. I place before you certain data to indicate that our direct tax collection is not commensurate with income and consumption pattern of Indian economy. As against estimated 4.2 crore persons engaged in organized sector employment, number of individuals filing return for salary income are only 1.74 crore. As against 5.6 crore informal sector individual enterprises and firms doing small business in India, number of returns filed by this category are only 1.81 crore. Out of 13.94 lakh companies registered in India up to 31th March, 2014, 5.97 lakh companies have filed their returns for Assessment Year 2016-17. Of 5.97 lakh companies which have filed their returns for Assessment Year 2016-17 so far, as many as 2.76 lakh companies have shown losses or zero income. 2.85 lakh companies have shown profit before tax of less than Rs. 1 crore. 28,667 companies have shown profit between Rs. 1 crore to Rs. 10 crore, and only 7781 companies have profit before tax of more than Rs.10 crores. Among 3.7 crore individuals who filed tax returns in 2015-16, 99 lakh show income below exemption limit of Rs. 2.5 Lakh p.a. 1.95 crore show income between Rs. 2.5 to Rs. 5 lakh, 52 lakh show income between Rs. 5 to Rs. 10 lakhs and only 24 lakh people show income above Rs. 10 lakhs. Of 76 lakhs individual assesses who declare income above Rs. 5 lakhs, 56 lakhs are in salaried class. number of people showing income more than 50 lakhs in entire country is only 1.72 lakh. We can contrast this with fact that in last five years, more than 1.25 crore cars have been sold, and number of Indian citizens who flew abroad, either for business or tourism, is 2 crore in year 2015. From all these figures we can conclude that we are largely tax non-compliant society. predominance of Writ Petition (Civil) No. 247 of 2017 & Ors. Page 143 cash in economy makes it possible for people to evade their taxes. When too many people evade taxes, burden of their share falls on those who are honest and complaint. 121) respondents have also claimed that linking of Aadhaar with PAN is consistent with India s international obligations and goals. In this behalf, it is pointed out that India has signed Inter-Governmental Agreement (IGA) with USA on July 9, 2015, for Improving International Tax Compliance and implementing Foreign Account Tax Compliance Act (FATCA). India has also signed multilateral agreement on June 3, 2015, to automatically exchange information based on Article 6 of Convention on Mutual Administrative Assistance in Tax Matters under Common Reporting Scheme (CRS), formally referred to as Standard for Automatic Exchange of Financial Account Information (AEoI). As part of India s commitment under FATCA and CRS, financial sector entities capture details about customers using PAN. In case PAN or submitted details are found to be incorrect or fictitious, it will create major embarrassment for country. Under Non-filers Monitoring System (NMS), Income Tax Department identifies non-filers with potential tax liabilities. Data analysis is carried out to identify non-filers about whom specific information was available in AIR, Writ Petition (Civil) No. 247 of 2017 & Ors. Page 144 CIB data and TDS/TCS Returns. Email/SMS and letters are sent to identified non-filers communicating information summary and seeking to know submission details of Income tax return. In large number of cases (more than 10 lac PAN every year) it is seen that PAN holder neither submits response and in many cases letters are return unserved. Field verification by fields formations have found that in large number of cases, PAN holder is untraceable. In many cases, PAN holder mentions that transaction does not relate to them. There is need to strengthen PAN by linking it with Aadhaar/biometric information to prevent use of wrong PAN for high value transactions. 122) While considering aforesaid submission of petitioners, one has to keep in mind aforesaid purpose of impugned provision and what it seeks to achieve. provision is aimed at seeding Aadhaar with PAN. We have already held, while considering submission based on Article 14 of Constitution, that provision is based on reasonable classification and that has nexus with objective sought to be achieved. One of main objectives is to de-duplicate PAN cards and to bring situation where one person is not having Writ Petition (Civil) No. 247 of 2017 & Ors. Page 145 more than one PAN card or person is not able to get PAN cards in assumed/fictitious names. In such scenario, if those persons who violate Section 139AA of Act without any consequence, provision shall be rendered toothless. It is prerogative of Legislature to make penal provisions for violation of any law made by it. In instant case, requirement of giving Aadhaar enrolment number to designated authority or stating this number in income tax returns is directly connected with issue of duplicate/fake PANs. 123) At this juncture, we will also like to quote following passages from nine Judge Bench judgment of this Court in Jindal Stainless Ltd.52, which discussion though is in different context, will have some relevance to issue at hand as well: 109. It was next argued on behalf of dealers that unreasonably high rate of tax could by itself constitute restriction offensive to Article 301 of Constitution. This was according to learned counsel for dealers acknowledged even in minority judgment delivered by Sinha, CJ in Atiabari's case (supra). If that be so, only way such restriction could meet constitutional requirements would be through medium of proviso to Article 304(b) of Constitution. There is, in our opinion, no merit in that contention either and we say so for two precise reasons. Firstly, because taxes whether high or low do not constitute restrictions on freedom of trade and commerce. We have held so in previous paragraphs of judgment based on our textual understanding of provisions of Part XIII which is matched by contextual interpretation. That being 52 Footnote 40 above Writ Petition (Civil) No. 247 of 2017 & Ors. Page 146 so mere fact that tax casts heavy burden is no reason for holding that it is restriction on freedom of trade and commerce. Any such excessive tax burden may be open to challenge under Part III of Constitution but extent of burden would not by itself justify levy being struck down as restriction contrary to Article 301 of Constitution. 110. Secondly because, levy of taxes is both attribute of sovereignty and unavoidable necessity. No responsible government can do without levying and collecting taxes for it is only through taxes that governments are run and objectives of general public good achieved. conceptual or juristic basis underlying need for taxation has not, therefore, been disputed by learned counsel for dealers and, in our opinion, rightly so. That taxation is essential for fulfilling needs of government is even otherwise well-settled. reference to Treatise on Constitutional Limitations (8th Edn. 1927 - Vol. II Page 986) by Thomas M Cooley brings home point with commendable clarity. Dealing with power of taxation Cooley says: Taxes are defined to be burdens or charges imposed by legislative power upon persons or property, to raise money for public purposes. power to tax rests upon necessity, and is inherent in every sovereignty. legislature of every free State will possess it under general grant of legislative power, whether particularly specified in constitution among powers to be exercised by it or not. No constitutional government can exist without it, and no arbitrary government without regular and steady taxation could be anything but oppressive and vexatious despotism, since only alternative to taxation would be forced extortion for needs of government from such persons or objects as men in power might select as victims. 111. Reference may also be made to following passage appearing in McCulloch v. Maryland, 17 US 316 (1819) where Chief Justice Marshall recognized Writ Petition (Civil) No. 247 of 2017 & Ors. Page 147 power of taxation and pointed out that only security against abuse of such power lies in structure of government itself. court said: 43. ..It is admitted that power of taxing people and their property is essential to very existence of government, and may be legitimately exercised on objects to which it is applicable to utmost extent to which government may choose to carry it. only security against abuse of this power is found in structure of government itself. In imposing tax, legislature acts upon its constituents. This is, in general, sufficient security against erroneous and oppressive taxation. 44. people of State, therefore, give to their government right of taxing themselves and their property; and as exigencies of government cannot be limited, they prescribe no limits to exercise of this right, resting confidently on interest of legislator, and on influence of constituents over their representative, to guard them against its abuse. 112. To same effect is decision of this Court in State of Madras v. N.K. Nataraja Mudaliar (AIR 1969 SC 147) where this Court recognized that political and economic forces would operate against levy of unduly high rate of tax. Court said: 16. Again, in democratic constitution political forces would operate against levy of unduly high rate of tax. rate of tax on sales of commodity may not ordinarily be based on arbitrary considerations, but in light of facility of trade in particular commodity, market conditions internal and external - and likelihood of consumers not being scared away by price which includes high rate of tax. Attention must also be directed sub-Section (5) of Section 8 which authorizes State Government, notwithstanding anything contained in Section 8, in public Writ Petition (Civil) No. 247 of 2017 & Ors. Page 148 interest to waive tax or impose tax on sales at lower rate on inter-State trade or commerce. It is clear that legislature has contemplated that elasticity of rates consistent with economic forces is clearly intended to be maintained. 124) Therefore, it cannot be denied that there has to be some provision stating consequences for not complying with requirements of Section 139AA of Act, more particularly when these requirements are found as not violative of Articles 14 and 19 (of course, eschewing discussion on Article 21 herein for reasons already given). If Aadhar number is not given, aforesaid exercise may not be possible. 125) Having said so, it becomes clear from aforesaid discussion that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number. This is stipulation of sub-section (1) of Section 139AA, which we have already upheld. At same time, as far as existing PAN holders are concerned, since impugned provisions are yet to be considered on touchstone of Article 21 of Constitution, including on debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of opinion that till aforesaid aspect of Article 21 is decided by Constitution Bench partial stay of aforesaid proviso is necessary. Those who have already Writ Petition (Civil) No. 247 of 2017 & Ors. Page 149 enrolled themselves under Aadhaar scheme would comply with requirement of sub-section (2) of Section 139AA of Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with provision of Section 139(2), their PAN cards be not treated as invalid for time being. It is only to facilitate other transactions which are mentioned in Rule 114B of Rules. We are adopting this course of action for more than one reason. We are saying so because of very severe consequences that entail in not adhering to requirement of sub-section (2) of Section 139AA of Act. person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till Constitution Bench authoritatively determines argument of Article 21 of Constitution. Since we are adopting this course of action, in interregnum, it would be permissible for Parliament to consider as to whether there is need to tone down effect of said proviso by limiting consequences. 126) However, at same time, we find that proviso to Section 139AA(2) cannot be read retrospectively. If failure to intimate Aadhaar number renders PAN void ab initio with deeming provision that PAN allotted would be invalid as if person Writ Petition (Civil) No. 247 of 2017 & Ors. Page 150 had not applied for allotment of PAN would have rippling effect of unsettling settled rights of parties. It has effect of undoing all acts done by person on basis of such PAN. It may have even effect of incurring other penal consequences under Act for earlier period on ground that there was no PAN registration by particular assessee. rights which are already accrued to person in law cannot be taken away. Therefore, this provision needs to be read down by making it clear that it would operate prospectively. 127) Before we part with, few comments are needed, as we feel that these are absolutely essential: (i) Validity of Aadhaar, whether it is under Aadhaar scheme or Aadhaar Act, is already under challenge on touchstone of Article 21 of Constitution. Various facets of Article 21 are pressed into service. First and foremost is that it violates Right to Privacy and Right to Privacy is part of Article 21 of Constitution. Secondly, it is also argued that it violates human dignity which is another aspect of Article 21 of Constitution. Since said matter has already been referred to Constitution Bench, we have consciously avoided discussion, though submissions in this behalf have been taken note of. We feel that all aspect of Article 21 needs to be dealt with by Writ Petition (Civil) No. 247 of 2017 & Ors. Page 151 Constitution Bench. That is reason we have deliberately refrained from entering into said arena. (ii) It was submitted by counsel for petitioners themselves that they would be confining their challenge to impugned provision on Articles 14 and 19 of Constitution as well as competence of Legislature, while addressing arguments, other facets of Article 21 of Constitution were also touched upon. Since we are holding that Section 139AA of Income Tax Act is not violative of Articles 14 and 19(1)(g) of Constitution and also that there was no impediment in way of Parliament to insert such statutory provision (subject to reading down proviso to sub-section (2) of Section 139AA of Act as given above), we make it clear that impugned provision has passed muster of Articles 14 and 19(1)(g) of Constitution. However, more stringent test as to whether this statutory provision violates Article 21 or not is yet to be qualified. Therefore, we make it clear that Constitutional validity of this provision is upheld subject to outcome of batch of petitions referred to Constitution Bench where said issue is to be examined. (iii) It is also necessary to highlight that large section of citizens feel concerned about possible data leak, even when Writ Petition (Civil) No. 247 of 2017 & Ors. Page 152 many of those support linkage of PAN with Aadhaar. This is concern which needs to be addressed by Government. It is important that aforesaid apprehensions are assuaged by taking proper measures so that confidence is instilled among public at large that there is no chance of unauthorised leakage of data whether it is done by tightening operations of contractors who are given job of enrollment, they being private persons or by prescribing severe penalties to those who are found guilty of leaking details, is outlook of Government. However, we emphasise that measures in this behalf are absolutely essential and it would be in fitness of things that proper scheme in this behalf is devised at earliest. 128) Subject to aforesaid, these writ petitions are disposed of in following manner: (i) We hold that Parliament was fully competent to enact Section 139AA of Act and its authority to make this law was not diluted by orders of this Court. (ii) We do not find any conflict between provisions of Aadhaar Act and Section 139AA of Income Tax Act inasmuch as when interpreted harmoniously, they operate in distinct fields. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 153 (iii) Section 139AA of Act is not discriminatory nor it offends equality clause enshrined in Article 14 of Constitution. (iv) Section 139AA is also not violative of Article 19(1)(g) of Constitution insofar as it mandates giving of Aadhaar enrollment number for applying PAN cards in income tax returns or notified Aadhaar enrollment number to designated authorities. Further, proviso to sub-section (2) thereof has to be read down to mean that it would operate only prospective. (v) validity of provision upheld in aforesaid manner is subject to passing muster of Article 21 of Constitution, which is issue before Constitution Bench in Writ Petition (Civil) No. 494 of 2012 and other connected matters. Till then, there shall remain partial stay on operation of proviso to sub-section (2) of Section 139AA of Act, as described above. No costs. .............................................J. (A.K. SIKRI) .............................................J. (ASHOK BHUSHAN) NEW DELHI; JUNE 09, 2017. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 154 ITEM NO.5 COURT NO.4 SECTION - X (For judgment) S U P R E M E C O U R T O F I N D I RECORD OF PROCEEDINGS WRIT PETITION(C)247 OF 2017 BINOY VISWAM Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) With WP(C)No.277/2017 WP(C)No.304/2017 Date : 09/06/2017 These petitions were called on for judgment today. For Petitioner(s) Mr.Salman Khurshid, Sr.Adv. Mr.Vishnu Shankar Jain, Adv. Mr.Deepak Joshi, Adv. Mr.I.K.M.Mairom, Adv. Mr.Sriram P., Adv. Mr.Pratap Venugopal, Adv. Ms.Surekha Raman, Adv. Mr.Udayaditya Banerjee, Adv. Mr.Prasanna S., Adv. Ms.Niharika, Adv. Ms.Sameeksha G., Adv. Mr.Apaar Gupta, Adv. For M/s K.J.John & Co., Adv. Mr.Anando Mukherjee, Adv. For Respondent(s) Ms.Sadhna Sandhu, Adv. Ms.Rashmi Malhotra, Adv. Mr.Zoheb Hossain, Adv. Mr.Arghya Sengupta, Adv. Ms.Ranjeeta Rohatgi, Adv. Mr.Ritesh Kumar, Adv. Mr.Abhinav Mukherji, Adv. Mr.Saurabh Kirpal, Adv. Mr.A.Gulati, Adv. Ms.Anil Katiyar, Adv. Writ Petition (Civil) No. 247 of 2017 & Ors. Page 155 Hon'ble Mr.Justice A.K.Sikri pronounced judgment of Bench comprising His Lordship and Hon'ble Mr.Justice Ashok Bhushan. These writ petitions are disposed of in following manner: (i) We hold that Parliament was fully competent to enact Section 139AA of Act and its authority to make this law was not diluted by orders of this Court. (ii) We do not find any conflict between provisions of Aadhaar Act and Section 139AA of Income Tax Act inasmuch as when interpreted harmoniously, they operate in distinct fields. (iii)Section 139AA of Act is not discriminatory nor it offends equality clause enshrined in Article 14 of Constitution. (iv) Section 139AA is also not violative of Article 19(1)(g) of Constitution insofar as it mandates giving of Aadhaar enrollment number for applying PAN cards in income tax returns or notified Aadhaar enrollment number to designated authorities. Further, proviso to sub-section (2) thereof has to be read down to mean that it would operate only prospective. (v) validity of provision upheld in aforesaid manner is subject to passing muster of Article 21 of Constitution, which is issue before Constitution Bench in Writ Petition (Civil) No. 494 of 2012 and other connected matters. Till then, there shall remain partial stay on operation of proviso to sub-section (2) of Section 139AA of Act, as described above. No costs. (SATISH KUMAR YADAV) (H.S.PARASHER) AR-CUM-PS COURT MASTER (Signed reportable judgment is placed on file) Writ Petition (Civil) No. 247 of 2017 & Ors. Page 156 Writ Petition (Civil) No. 247 of 2017 & Ors. Page 157 Binoy Viswam v. Union of India & Or
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