BINOY VISWAM v. UNION OF INDIA & Ors.

4.3 Validity-of a legislative act cannot be challenged by c·reating artifidal classes by those who are objecting to the said . provision and predicating the a.rgument of discrimination on that basis. When a law is made, all those who are covered by that law ' 'lire supposed to' follow the same. · No doubt, it is the right of a Citizen to approach the Court and question the constitutional · validity of a particular law enacted by the Legislature. However, merely ·because a section of persons opposes the law, would not mean that it has become a separate class by itself. Two classes, cannot be created on this basis, namely, one of those who want to be covered by the scheme, and others who do not want to be covered thereby. If such a proposition is accepted, every legislation would be prone to challenge on the ground of discrimination. As far as plea of discrimination is concerned, it has to be raised by showing that the impugned law creates two classes without any reasonable classification and treats them F differently. [Para 102][97-A-C)

4.4 The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances, in the same position, as the varying needs of different classes of persons often require G separate treatment. It is permissible for the State to classify persons for legitimate purposes. The Legislature is also competent to exercise its discr~tion and make classification. In the present scenario the impugned legislation has created two classes, i.e. one class of those persons who are assessees and other class of those persons who are income tax assessees. It is H BINOY VISWAM v. UNION OF INDIA & ORS. 13 because of the reason that the impugned provision is applicable A only to those who are filing income tax returns. Therefore, the only question would be as to whether. this classification is reasonable or not. There cannot be any dispute that there is a reasonable basis for differentiation and, therefore, equal pr~tection clause enshrined in Article 14 is not attracted. What B Article 14 prohibits is class legislation and not reasonable classification for the purpose of legislation. All income tax asesl\ees constitute one class and they are treated alike by the impugned provision. [Para 103)(97-D-F) E.P Royappa v. State of Tamil Nadu & Anr. (1974) 4 SCC 3 : [1974) 2 SCR 348 - referred to. c

5.1 Whether impugned provision is violative of Article 19(1)(g) Invocation of'provisions of Article 19(1)(g) of the Constitution by the petitioners was in the context of proviso to D sub-section (2) of Section 139AA of the Act which contains the consequences of the failure to intimate the Aadhaar number to such authority in such form and manner as may be prescribed. Insofar as first limb of Section 139AA of the Act is concerned, it was within the competence of the Parliament to make a provision of this nature and further that it is not offensive of Article 14 of E the Constitution. This requirement, per se, does not find foul with Article 19(1)(g) either, inasmuch as, quoting the Aadhaar number for purposes mentioned in sub-section (1) or intimating the Aadhaar number to the prescribed authority as per the requirement of sub-section (2) does not, by itself, impinge upon F the right to carry on profession or trade, etc. Therefore, it is not violative of Article 19(1)(g) of the Constitution either. [Para 106, 114][98-B-C; 102-E-F] Modern Dental College and Research Centre & Ors, v. State of Madhya Pradesh (2016) 7 SCC 3S3 - referred to. G S.2 Though PAN is issued under the provisions of the Act (Section 139A), its function is not limited to giving this number in the income-tax returns or for other acts to be performed under the Act, as mentioned in sub-sections (5), (SA), (SB); S(C), S(D) H 14 SUPREME COURT REPORTS [2017] 7 S.C.R. B c A and 6 of Section 139A. Rule 114B of the 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 a sum exceeding Rs.50,000/- with a banking company; while making deposit of more than Rs.50,000/- in any account with Post Office, savings bank; a contract of a value exceeding Rs.1 lakh for sale or purchase of securities as defined under the Securities Contract (Regulation) Act, 1956; while opening an account with a banking company; making an application for installation of a telephone connection; 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 an 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 an amount D exceeding Rs.25,000/- at any one time; while making payment of an amount of Rs.50,000/- or more to a mutual fund for purchase of its units or for acquiri.ng shares or debentures/bonds in a company or bonds issued by the Reserve Bank of India; or when the transaction of purchase of bullion or jewellery is made by making payment in cash to a dealer above a specified amount, etc. This shows that for doing many activities of day to day nature, including in the course of business, PA,N is to be given. Thus, in the absence of PAN, it will not be possible to undertake any of the aforesaid activities though this requirement is aimed at curbing the tax evasion. Thus, if the PAN of a person is withdrawn or is nullified, it definitely amounts to placing restrictions on the right to do business as a business under Article 19(l)(g) of the Act. The question would be as to whether these restrictions are reasonable and, therefore, meet the requirement of clause (6) of Article 19. [Para 115][102-H; 103-A-F] E F

5.3 By making use of the technology, a method is sought to G be devised, in the form of Aadhaar, whereby identity of a person is ascertained in a 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 the nomenclature 'unique identity'. It is aimed at securing H BINOY VISWAM v. UNION OF INDIA & ORS. 15 c advantages on different levels some of which are (i) In the first A instance, as a welfare and democratic State, it becomes the duty of any responsible Government to come out with welfare schemes for the upliftment of poverty stricken and marginalised sections of the society. This is even the.ethos oflndian Constitution which casts a duty on the State, in the form of 'Directive Principles of B 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 is not that Government has not taken steps in this direction from time to time. At the same time, however, harsh reality is that benefits of these schemes have not reached those persons for wh.om that 11re actually meant. India has achieved significant economic growth since independence. In particular, rapid economic growth has been achieved in the last 25 years, after the country adopted the policy of liberalisation D and entered the era of, what is known as, globalisation. Economic growth in the last decade has been phenomenal and for many years, the Indian economy grew at highest rate in the world. At the same time, it is also a fact that in spite of significant political and economic success which has proved to be sound and sustainable, the benefits thereof have not percolated down to _the poor and the poorest. In fact, such .benefits are reaped primarily by rich and upper middle classes, resulting into widening the gap between the rich and the poor. Not only sustainable development is needed which takes care of integrating growth and ·development, thereby ensuring that the benefit of economic growth is reaped by every citizen of this country, it also becomes the duty of the Government in a welfare State to come out with various welfare schemes which not only take care of immediate needs of the 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. Various welfare schemes are, in fact, devised and floated from time to time by the Government, keeping aside substantial amount of money earmarked for spending on socially and economically backward classes. However, for various reas'ons including corruption, actual benefit does not reach those who are supposed E F G H SUPREME COURT REPORTS (2017] 7 S.C.R. to receive such benefits. One of the main reasons is failure to . identify these p~rsons for lack of means by which identity could be established of such genuine needy cl; tss. Resultantly, lots of ghosts and duplicate beneficiaries are able to take undue and impermissible benefits. A former Prime Minister of this country has gone to record to say that out of one rupee spent by the Government for welfare of the downtrodden, only 15 paisa thereof actually reaches those persons for whom it is meant. It cannot be doubted that with UID/ Aadhaar much of the malaise in this field can be ta_ken care of. [Para 118)[109-D-H; 110-A-B; 111-C F) 16 A B c E

5.4 Menace of corruption and black money has reached alarming proportion in this country. It is eating into the economic progress which the country is otherwise achieving. Even as per the observations of the Special Investigation Team (SIT) on black morley headed by Justice M.B. Shah, one of the reasons is that D persons have the 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 the data available with each of the independent proofs of ID. For this reason, ~ven SIT suggested that these databases be interconnected. To the same effect ~s the recommendation of the Committee headed by Chairman, CBDT on measures to tackle black money in India and abroad which also discusses the problem of money-laundering being done to evade taxes under the garb of shell companies by the persons who hold multiple bogus PAN numbers under different names or variations of their names. That can be possible if one uniform proof of identity, namely, UID is adopted. It may go a long way to.check and minimise the said malaise. Thirdly, Aadhaar or UID may facilitate law enforcement agencies to take care of problem of terrorism to some exten( and may also be helpful in G checking and cracking the crimes. No doubt, it Js the intention of the Government to give fillip to Aadhaar movement !llld encourage the people of thi~ country to enroll themselves under the Aadhaar scheme. [Para 118)(111-G-H; 112-A-E) F

5.5 Insofar as Section 139AA of the Income Tax Act, 1961 H BINOY VISWAM v. UNION OF INDIA & ORS. 17 is concerned, the explanation of the respondents is that the A primary purpose of introducing this provision was to take care of the problem of multiple PAN cards obtained in fictitious names. Such multiple cards in fictitious names are obtained with the motive of indulging into money laundering, tax evasion, creation and channelising of black money. It is mentioned that in a de- B duplication exercises, H.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 the only method available i.e. by seeding of existing PAN with C Aadhaar. It is perceived as the best method, and the only. robust . method of de-duplication of PAN database. The respondents have claimed that linking of Aadhaarwith PAN is consistent with India's international obligations and goals. In this behalf, it is pointed out that India has signed the Inter-Governmental Agreement (IGA) D with the USA on July 9, 2015, for Improving International Tax Compliance and implementing the Foreign Account Tax Compliance Act (FATCA). India has also signed a multilateral agreement on June- 3, 2015, to automatically exchange information based on Article 6 of the Convention on Mutual Administrative Assistance in Tax Matters under the Common Reporting Scheme (CRS), formally referred to as the Standard for Automatic Exchange of Financial Account Information (AEoI). As part of India's commitment under FATCA and CRS, financial sector entities, capture the details about the customers using the PAN. In case the PAN or submitted details ar.e found to be incorrect or fictitious, it will create major embarrassment for the 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, CIB data and TDS/TCS Returns. Email/SMS and letters are sent to the identified non- G filers communicating the information summary and seeking to know the submission details of Income tax return. In a large number of cases (more than 10 lac PAN every year) it is seen that the P~N holder neither submits the Tesponse and in many cases the letters are return unserved. Field verification by fields F E H 18 A B c SUPREME COURT REPORTS [2017) 7 S.C.R. formations have found that in a large number of cases, the PAN holder is untraceable. In many cases, the PAN holder mentions that the transaction does not relate to them. There is a need to strengthen PAN by linking it with Aadhaar/biometric information to prevent use of wrong PAN for high value transactions.(Paras 119, 12111112-G-H; 113-A-B; 115-E-H; 116-A-CJ

5.6 The impugned provision is aimed at seeding Aadhaar with PAN. One of the main objectives is to de-duplicate PAN cards and to bring a situation where one person is not having more than one PAN card or a person is not able to get PAN cards in assumed/fictitious names. In such··a scenario, if those persons who violate Section 139AA of the Act without any consequence, the provision shall be rendered toothless. It is the prerogative of the Legislature to make penal provisions for violation of any law made by it. In the instant case, requirement of giving Aadhaar . enrolment number to the designated authority or stating this D number in the income tax returns is directly connected with the . . E issue of duplicate/fake PANs. Therefore, it cannot be denied that there has to be some provision stating the consequen·ces for not complying with the requirements of Section 139AA of the Act, more particularly when these requirements are found as not violative of Articles 14 and 19. If Aadhar number is not given, the said exercise may not be possible. Sub-section (1) of Section 139AA stipulates that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number. At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, till the said aspect of Article 21 is decided by the Constitution Bench a partial stay of the said proviso is necessary. Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-sectiol\ (2) of G Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comp!y with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule F ,,_. · H BINOY VISWAM v. UNION OF INDIA & ORS. 19 114B of the Rules. This is held so because of very severe A consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act. A 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 the Constitution Bench authoritatively determines B the argument of Article 21 of the Constitution. Since this course of action is adopted, in the interregnum, it would be permissible for the Parliament to consider as to whether there is a need to tone down the effect of the ·said proviso by limiting the consequences. However, at the same time, proviso to Section 139AA(2) cannot be read retrospectively. If failure to intimate C the Aadhaar number renders PAN void ab initio with the deeming provision that the PAN allotted would be invalid as if the person had not applied for allotment of PAN would have rippling effect of unsettling settled rights of the parties. It has the effect of undoing all the acts done by a person on the basis of such a PAN. It may D have even the effect of incurring other penal consequences under the Act for earlier period on the ground that there was no PAN registration by a particular assessee. The rights which are already accrued to a person in law cannot be taken away. Therefore, this provision needs to be read down by making it clear that it would operate prospectively.[Paras 122, 124, 125, 126][116-D-F; 119- E B, C-H; 120-A-C) · 6. The impugned provision has passed the mu:;ter of Articles 14 and 19(1)(g) of the Constitution. However, more stringent test as to whether this statutory provision violates Article 21 or not is yet to be qualified. Therefore, constitutional F validity of this provision is upheld subject to the outcome of batch of petitions referred to the Constitution Bench where the said issue is to be examined. It is also necessary to highlight that a large section of citizens feel concerned about possible data leak, even when many of those support linkage of PAN with Aadhaar. · This is a concern which needs to be addressed .. ,by the G Government. It is important that the said apprehensions are assuaged by taking proper measures so that confidence is instilled among the public at large that there is no chance of unauthorised leakage of data whether it is done by tightening the operations of H SUPREME COURT REPORTS [2017] 7 S.C.R. the contractors who are given the job of enrollment, they being private persons or by prescribing severe penalties to those who are found guilty of leaking the details, is the outlook of the Government.· However, measures in this behalf are absolutely essential and it would be in the fitness of things that proper scheme in this behalf is devised at the earliest.[Para 127)(120- H; 121-A-D) MP. Sharma & Ors. v. Satish Chandra & Ors. AIR 1954 SC 300 : [1954) SCR 1077; Kharak Singh v. State of UP. & Ors. AIR 1963 SC 1295 : i196:iJ SCR 332; Ram Jawaya Kapoor v. State of Punjab [1955) 2 SCR 225; Madan Mohan Pathak v, Union of India AIR 1978 SC 803 : [1978] 3 SCR 334; Bakhtawar Trust v. MD. Narayan (2003) 5 SCC 298 : [2003] 1 Suppl. SCR 1; R.K. Dalmia v. Justice S.R. Tendolkar [1959) SCR 279; National Legal Services Authority v. Union of India & Ors. (2014) 5 SCC 438; Sunil Batra & Am: v. Delhi Administration & Ors. (1978) 4 SCC 494 : [1979) 1 SCR 392; Aruna Ramachandra Shdnbaug v. Union of India & Ors. (2011) 4 SCC 454 : [2011] 4 SCR 1057; Nagpur Improvement Trust & Am: v. Vithal Rao & Ors. (1973) 1 SCC 500 : [1973] 3 SCR 39; Subramanian Swamy V, Director, Central Bureau of Investigation & . Am: (2014) 8 SCC 682 : (2014] 6 SCR 873; M Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336; Gobind v. State of Madhya Pradesh (1975) 2 SCC 148 : [1975] 3 SCR 946; Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 : [2007] 12 SCR 991; Dayawati v. lnderjit [1966] 3 SCR 275; Sharda v. Dharmpal (2003) 4 SCC 493 : [2003] 3 SCR 106; K.T. Plantation Private Limited & Am: v. State of Karnataka [2011) 13 SCR 636 : (2011) 9 SCC 1; State of Madhya Pradesh v. Rakesh Kohli & Am: (2012) 6 SCC 312 : (2012] 6 SCR 661; Secretary to Government of Madras & Am: v. P.R. Sriramulu & Am: (1996) 1 sec 345 : [1995) 5 Suppl. SCR 551; GC. Kdnungo v. State of Orissa (1995) 5 SCC 96 : [1995] _! Suppl. SCR 510; Mohd. Hanif Quareshi & Ors. v. 20 A B c D E F G H BINOY VISWAM v. UNION OF INDIA & ORS. State of Bihar AIR 1958 SC 731 : [1959] SCR 629; Synthetics and Chemicals Ltd. & Ors. v. State of UP. & Ors. (1990) 1 SCC 109 : [19891 1 Suppl. SCR 623; Goa Foundation & Am: v. State of Goa & Am: (2016) 6 SCC 602 : [2016] 1 SCR 1025; PUCL v. Union of India (2011) 14 SCC 331; State of Kera/a & others v. President, Parents Teachers Association, SNVUP and Others (2013) 2 SCC 705 : [2013] 4 SCR 66; Peoples Union for Civil Liberties (PDS Matter) v. Union of India & Ors. (2013) 14 SCC 368; Peoples Union for Civil Liberties v. Union of India & Ors. 2010 (5) SCC 318; Lokniti Foundation v. Unio.n of India & Ors. 2017 (7) SC.C 155; R. Rajagopal & Am: v. State of Tamil Nadu & Ors. (1994) 6 SCC 632 : [1994] 4 Suppl. SCR 353 - referred to. Roe v. Wade 410 U.S. 113 (1973) - referred to. Case Law Reference [1954] SCR 1077 [1964] SCR 332 [1955] 2 SCR 225 [1978] 3 SCR 334 [2003) 1 Suppl. SCR ·1· [1959] SCR 279 (2016) 1 sec ~53 [1967] 2 SCR 454 (2014) 5 sec 438 [1979) 1 SCR 392 [20111 4 SCR 1057 [1973] 3. SCR 39 [2014) 6 SCR 873 . [2006] 7 Suppl. SCR "336 ! . . ·[1975) 3 SCR 946 Para 9 referred to Para9 referred to Para 21 referred to Para 22 referred to Para 22 referred to Para 28 referred to referred to Para 30 Para 35 relied on referred to Para 37 referred to Para 37 referred to Para 37 referred to Para40 referred to · · Para 41 referred to Para44 referred to Para 46 [2007] 12 SCR 991 referred to Para 46 [1966] 3 SCR 275 referred to Para 48 21 A B c D E F .. G H 22 A B c D E F G H SUPREME COURT REPORTS . [2017] 7 S.C.R. [2003) 3 SCR 106 [2011) 13 SCR 636 [2012] 6 SCR 661 referred to Para 50 referred to Para 52 referred to Para 53 [1995) 5 Suppl. SCR 551 referred to Para 54 [1995) 1 Suppl. SCR 510 referred to Para 54 [1959] SCR 629 referred to, Para 54 [1989) 1 Suppl. SCR 623 referred to Para 55 [2016] 1 SCR 1025 (2011) 14 sec 331 [2013) 4 SCR 66 (2013) 14 sec 368 (2010) 5 sec 318 (2011) 1 sec 155 [1994) 4 Suppl. SCR 353 [2008] 17 SCR 120 [2008) 4 SCR 1 [1996] 3 SCR 721 (2015) 12 SCR 1106 (2016) 11 SCALE 1 [1971) 3 SCR 607 [1992) 2 SCR 164 (1950) SCR 869 [1974) 2 SCR 348 referred to Para 56 referred to Para 61 referred to Para 62 referred to Para 64 referred to Para 65 referred to Para 66 referred to Para 71 relied on relied on relied on relied on relied on relied on relied on relied on Para 74 Para 76 Para 77 Para 78 Para 82 Para 92 Para 94 Para 94 referred to Para 104 CIVIL ORIGINAL'JURISDICTION: Writ Petition (C) No. 247 of2017. Under Article 32 of the Constitution oflndia WITH W. P. (C) Nos. 277 and 304 of 2017. BINOY VISWAM v. UNION OF INDIA & ORS. 23 Atmaram N. S. Nadkarni, ASG, Salman Khurshid, Arvind P. Datar, A Shyam Divan, Sr. Advs, Sriram P., Vishnu Shankar M. S., Mukund P., Vishnu Jain, Govind Manoharan, Ms. Sneha Ravi Iyer, Ms. Athira G Nair, Ms. Sanchita, Pratap Venugopal, Ms. Surekha Raman, Udayaditya Banerjee, Prasanna S., Ms. Niharika , Ms. Kanika Kalaiyarasan, Ms. Samiksha G, Apar Gupta, M/s. K. J. John & Co., Anando Mukherjee, B Nipun, Saxena, Ms. DivyaAnand, Kumar Shivam, Dr. Arghya Senguptl'i, Saurabh Kirpal, Zoheb Hossain, Ritesh Kumar, Abhinav Mukherji, Ms. Ranjeeta Rohatgi, Mrs. Anil Katiyar, Santosh Rebello, Jai Dehadrai, Ms. Sneha Tendulkar, Ms. Nivedita Nair, Anil Gulati, Ms. Ritwika Sharma, Ms. Adeeba N., Advs. for the appearing parties. The Judgment of the Court was delivered by c A. K. SIKRI, J. I. In these three writ petitions filed by the petitioners, who claim themselves to be pubic spirited persons, challenge is laid to the constitutional validity of Section 139AA of the Income Tax Act, 1961 (hereinafter referred to as the 'Act'), which provision has been inserted by the amendment to the said Act vide'FinanceAct, 2017. D Section 139AA of the Act reads as under: "Quoting of Aadhaar number. -(1) Every person who is eligible to obtain Aadhaar number shall, on or after the 1st day of July, 2017, quote Aadhaar number- (i) in the application form for allotment of permanent account E number; (ii) in the return of income: Provided that where the person does not possess the Aadhaar Number, the Enrolment ID of Aadhaar application form issued to F him at the time of enrolment shall be quoted in the application for permanent account number or, as the case may be, in the return of income furnished by him. (2) Every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to G obtain Aadhaar number, shall intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette: . H SUPREME COURT REPORTS [2017]7 S.C.R. Provided that in case of failure to intimate the Aadhaar number, the permanent account number allotted to the person shall be deemed to be invalid and the other provisions of this Act shall apply, as if the person had not applied for allotment of permanent account number. (3) The 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 the Central Government in this behalf, in the Official Gazette. Explanation. - For the purposes of this section, the expressions - (i) "Aadhaar number'', "Enrolment" and "resident" shall have the same meanings respectively assigned to them in clauses (a), (m) and (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Bi;nefits and Services) Act, 2016 (18 of 2016); (ii) "Enrolment ID" means a 28 digit Enrolment Identification Number issued to a resident at the time of enrolment."

#2. Even a cursory look at the aforesaid provision makes it clear that in the application forms for allotment of Permanent Account Number (for short, 'PAN') as well as in the income-tax returns, the 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 the 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, the Enrolment ID of Aadhaar application form is to be quoted. It would mean that those who would not be possessing Aadhaar card as on-JulyOI, 2017 may have to necessarily apply for enrolment of A.adhaar before July 01, 2017.

#3. The effect of this provision, thus, is that every person who desires to obtain PAN card or who is an assessee has to necessarily enrol for Aadhaar. It makes obtaining of Aadhaat card compulsory for those persons who are income-tax assessees. Proviso to sub-section (2) of Section 139AA of the Act stipulates the consequences of failure '·. 24 A B ·C D E F G H BINOY VISWAM v. UNION OF INDIA & ORS. [A. K. SIKRI, J.] 25 to intimate the Aadhaar number. In those cases, PAN allotted to such A persons would become invalid not only from July 01, 2017, but from its inception as the deeming provision in this proviso mentions that PAN would be invalid as ifthe person had not applied for allotment of PAN, i.e. from the very beginning. Sub-section (3), however, gives discretion to the Central Government to exempt such person or class or classes of persons or any State or part of any State from the requirement of quoting Aadhaar number in the application form for PAN or 'in the return of income. B The challenge is to this compulsive nature of provision inasmuch as with the introduction of the aforesaid provision, no discretion is left with the income-tax assessees insofar as enrolment under the Aadhaar C (Targeting Delivery of Financial and Other Sub~idies, Benefits and Services) Act, 2016 (hereinafter referred to as the 'Aadhaar Act') is concerned. According to the petitioners, though Aadhaar Act prescribes that enrolment u11der the said Act is voluntary and gives choice to a person to enrol or not to enrol himself and obtain Aadhaar card, this D compulsive element thrusted in Section'l39AA of the Act makes the said provision unconstitutional. The basis on which the petitioners so contend would be taken note of at the appropriate stage. Purpose of these introductory remarks was ta highlight the issue involved in these writ petitions at the threshold. · E

#4. Before we take note of the arguments advanced by the petitioners and the rebuttal.thereof by the respondents, it would be in the fitness of things to take stock of historical facts pertaining to the Aadhaar scheme and what Aadhaar enrolment amounts to. Aadhaar Scheme and its administrative and statutory F framework

#5. Respondent No. I, Union of India, through the Planning Commission, issued Notification dated January 28, 2009, constituting the Unique Identification Authority of India (for short, 'UIDAI') for the purpose of implementing of Unique Identity (UID) scheme wherein a G UID database was to be collected from the residents ofindia. Pursuant to the said Notification, the Government ofindia appointed Shri Nandan Nilekhani, an entrepreneur, as tlie Chairman of the UIDAI on July 02, 2009. According to this scheme, every citizen ofindia is entitled to enrol herself/himself with it and get a unique, randomnly selected 12 digit H 26 SUPREME COURT REPORTS [2017] 7 S.C.R. A number. For such enrolment, every person so intending would have to provide his/her personal information along with biometric details such a fingerprints and iris scan for future identification. Accordingly, it is intended to create a centralized database under the UIDAI with all the above information. The scheme was launched in September 2010 in the rural areas of Maharashtra and thereafter extended all over India. One of the objects of the entire project was non-duplication and elimination of fake identity cards. B

#6. On December 03, 2010, the National Identification Authority· oflndia Bill, 2010 was introduced {n the Rajya Sabha. On December 13, 2011, the Standing Committee Report was submitted to the Parliament stating that both the Bill and project should be re-considered. The Parliamentary Standing Committee on Finance rejected the Bill of2010 as there was opposition to the passing of the aforesaid Bill by the Parliament. Be that as it may, the said Bill of 2010 did not get through. The result was that as on that date, Aadhaar Scheme was not having any statutory backing but was launched and contifmed to operate in It may also be exercise of executive power of the Government. mentioned that the Government appointed private enrollers and these private collection/enrolment centres run by private parties continued to enrol the citizens under the UID scheme.

#7. Writ Petition (Civil) No. 494 of2012, under Article 32 of the Constitution of India, was preferred by Justice K.S. Puttuswamy, a former Judge of the Karnataka High Court before this Court, challenging the UID scheme stating therein that the same does not have any statutory basis and it violated the 'Right to Privacy', which is a facet of Article 21 of the Constitution. This Court decided to consider the plea raised in the said writ petition and issued notice. Vide order dated September 23, 2013, the Court also passed the following directions: "In the meanwhile, no person should suffer for not getting·the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant." In the meanwhile, various writ petitions were filed by public spirited citizens and organisations challenging the validity of the Aadhaar scheme c D E F G H BINOY VISWAM v. UNION OF INDIA & ORS. [A. K. SIKRI, J.] 27 and this Court has tagged all those petitions along with Writ Petition A (Civil) No. 494 of2012.

#8. In the meantime, in some proceedings before the Bombay High Court, the said High Court passed orders requiring UIDAI to provide biometric information to CBI for investigation purposes with respect to a criminal trial. This order was challenged by UIDAI by filing Special B Leave Petition (Criminal) No. 2524 of2014, in which orders dated March 24, 2014 were passed by this Court restraining the UIDAI from transferring any biometric information t-0 any agency without the written consent of the concerned individual. The said order is in the following terms: . ."In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of D Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are direeted to modify their forms/circulars/likes so ·as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith." c E

#9. Thereafter, the aforesaid writ petitions and special leave petitions were taken up together. Matter was heard at length by a three Judges Bench of this Court and detailed arguments were advanced by various counsel appearing for the petitioners as well as the Attorney General for India who appeared on behalf of the Union oflndia. As stated above, one of the main grounds of attack on Aadhaar Card scheme was that F the very collection of biometric data is violative of the 'Right to Privacy', which, in turn, violated not only Article 21 of the Constitution oflndia but otherArticles embodying the fundamental rights guaranteed under Part III of the Constitution. This argument was sought to be rebutted by the respondents with the submission that in view of eight Judges' Bench G 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.:, the legal position regarding the existence of fundamental Right. to