BINOY VISWAM versus UNION OF INDIA & ORS.
[2017] 7 S.C.R. 1, Supreme Court of India, 2017
Outcome: Disposed off
Segment: Ratio
[2017] 7 S.C.R. 1 
BINOY VISWAM 
v. 
UNION OF INDIA & ORS. 
(Writ Petition (Civil) No. 247 of2017) 
JUNE 09, 2017 
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.) · 
Income Tax Act, 1961: 
s.139AA - Constitutionality of- s.139AA makes it compulsory 
A 
B 
for assessees to give aadhaar number - Constitutional validity of C 
s.139AA challenged on the ground that since enrolment under 
Aadhaar Act is voluntary, it canno1 be made compulsory under the 
· Income Tax Act - Held: The purpose for enrolment under the 
Aadhaar Act is to avail benefits of various welfare schemes etc. as 
stipulated in. s. 7 of.th.e Aadhaar Act - The purpose behind Income 
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Tax Act, on the other hand, is entirely different - For achieving the 
purpose such as curbing black money, money laundering and tax 
evasion etc., if the Parliament chooses to make the provision 
mandatory under the Income Tax Act, the competence of the 
Parliament cannot be questioned on the ground that it is 
impermissible only because under Aadhaar Act, the provision is 
directory in nature - It is the prerogative of the Parliament to make 
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a particular provision directory in one statute and mandatory/ 
compulsory in other - That by itself cannot be a ground to question 
the competence of the legislature - After all, Aadhaar Act is not a 
mother Act - Two laws, i.e., Aadhaar Act, on the one hand, and law 
in the form of s.139AA of the Act, on the other hand, are two different 
stand alone provisions/laws and validity of one cannot be
examined 
in the light of provisions of other Acts - Thus, there is no conflict 
between the provisions of Aadhaar Act and s.139AA of Income Tax 
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Act in as much as when interpreted harmoniously they operate in 
distinct fields - Legislation - Interpretation of statutes - Harmonious 
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construction - Aadhaar (Targeted Delivery of Financial and other 
Subsidies, Benefits and Services) Act. 
s.139AA - Purpose of- Held: s.139AA is aimed at seeding 
Aadhaar with PAN - One of the main objectives is to de-duplicate 
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[2017] 7 S.C.R. 
A 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 s. I 39AA of the Act without any consequence, the provision 
shall be rendered toothless - It is the prerogative of the Legislature 
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to make penal provisions for violation of any law made by it - The 
requirement of giving Aadhaar enrolment number to the designated 
authority or stating this number in the income tax returns is directly 
connected with the issue of duplicate/fake PANs - Therefore, it 
cannot be denied that there has to be some provision stating the 
consequences for not complying with the requirements of s. l 39AA 
of the Act, more particularly when these requirements are found as 
not violative of Arts.14 and 19 - If Aadhar. number is not given, the 
said exercise may not be possible - Sub-section (1) of s. l 39AA 
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 
D provisions are yet to be considered on the touchstone of Art.21 of 
the Constitution, including on the debate around Right to Privacy 
and human dignity, etc. as limbs of Art.2I, till the said aspect of 
Art.2I is decided by the Constitution Bench a partial stay of the 
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said proviso is
necessary - Those who have already enrolled 
themselves under Aadhaar scheme would comply with the 
requirement of sub-section (2) of s.l 39AA of the Act -
However, 
those assessees who are not Aadhaar card holders and do not comply 
with the provision of s.139(2), their PAN cards be not treated as 
invalid for the time being - A person wJio 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 the argument of Art.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 
G proviso by limiting the consequences - However, at the same time, 
proviso to s. l 39AA(2) cannot be read retrospectively - Constitution 
of India - Art.21. 
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s.139AA(2) proviso - Retrospective effect - Constitutionality 
of- Held: If failure to intimate the Aadhaar number renders PAN
BINOY VISWAM v. UNION OF INDIA & ORS. 
3 
void ab initio with the deeming provision that the PAN allotted would A 
be invalid as if the person had not applied for allotment of PAN 
would have rippling effect of unsettling settled rights of the parties 
- It has the effect of undoing all the acts done by a person on the 
basis of such a PAN - It may have even the effect of incurring other 
penal consequences under the Act for earlier period on the ground B 
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, proviso to sub-section (2) has to be read down to 
mean that it would operate only prospective. 
Aadhaar (Targeted Delivery of Financial and other Subsidies, 
Benefits and Services) Act, 2016: 
Object of its enactment - Held: The Aadhaar Act is enacted 
to enable the Government to identify individuals for delivery of 
benefits, subsidies and services under various welfare schemes. 
Whether Aadhaar card scheme whereby biometric data of an 
individual is collected violates- Right to Privacy and, therefore, is 
offensive of Art.21 of the Constitution - Held: This issue is pending 
before the Constitution Bench and is yet to be decided - In the 
process, the Constitution Bench is also called upon to decide as to 
whether Right to Privacy is a part of Art. 21 of the Constitution at 
all - Final decision pending - Constitution of India - Art.21. 
Need to interconnect the
databases - Linking PAN with 
Aadhaar/biometric information to prevent use of wrong PAN for 
high value transactions - Multiple methods of giving proofs of 
identity - There is no mechanism/system at present to collect the 
data available with each of the independent prooft of ID - Seeding 
of existing PAN with Aadhaar is perceived as the best method, and 
the only robust method for de-duplication of PAN database. 
Constitution of India: 
Art.14 - Reasonable classification -· Art.14 enshrines the 
principle of equality as a fundamental right - It gives the right to 
equal treatment in similar circumstances, both in privileges conferred 
and in the liabilities imposed - However, the guarantee against the 
denial of equal protection of the law does not mean that identically 
the same rules of law should be made applicable to all persons in 
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spite of difference in circumstances or conditions - The varying 
needs of different classes or sections of people require differential 
and separate treatment - The Legislature is required to deal with 
diverse problems arising out of an infinite variety of human relations 
- The principle of equality of law, thus, means not that the same law 
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should apply to everyone but that a law should deal alike with all 
in one class; that there should be an equality of treatment under 
equal circumstances - Aadhaar (Targeted Delivery of Financial and 
other Subsidies, Benefits and Services) Act, 20 i 6. 
Art.i4 - Class legislation - it is permissible for the State to 
classify persons for 'legitimate purposes - The Legislature is also 
competent to exercise its discretion and make classification -
s.i39AA of income Tax Act, i96i 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. - The impugned provision is 
applicable only to those who are filing income tax returns - There 
cannot be any dispute that there is a reasonable basis for 
dijferentiation and, therefore, equal protection clause enshrined in 
Art. i 4 is not attracted - What Art. i 4 prohibits is class legislation 
and not reasonable classification for the purpose of legislation -
All income tax asessees constitute one class and they are treated 
alike by the impugned
provision. 
Art. i 9(1 )(g) - Quoting the Aadhaar number for purposes 
mentioned in sub-section (1) of s.i 39AA of Income Tax Act, i96i 
or intimating the Aadhaar number to the prescribed authority as 
per the requirement of sub-section (2) does not, by itself, impinge 
upon the right to carry on profession or trade, etc. - Therefore, it is 
not violative of Art.i9(l)(g) of the Constitution. 
Art.i9(l)(g) - If the PAN of a person is withdrawv or is 
nullified, it definitely amounts to placing restrictions on the right to 
do' business. 
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Principle of separation of power - Each wing of the State to 
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act within the sphere delineated for it under the Constitution -
Crossing these limits would render the action of the State ultra vires 
the Constitution - When it comes to power of taxation, undoubtedly, 
power to tax is treated as sovereign power of any State - Taxation.
BINOY VISWAM v. UNION OF INDIA & ORS. 
5 
Judicial review; 
A 
Power of courts to interfere with legislative action - Scope of 
- Held; Courts can strike down legislation either on the basis that 
it falls foul of federal distribution of powers or that it contravenes 
fandamental rights or other Constitutional rights/provisions of the 
Constitution of India - No doubt, since the Supreme Court and the 
B 
High Courts are treated as the 'ultimate arbiter in all matters involving 
interpretation of the Constitution, it is the Courts which have 1he 
final say on questions relati'!g to rights ~nd its violation. 
c 
Stages ·of judicial review - Exercise of judicial review to be 
done at three stages - Jn the first stage, the Court would examine as 
to whether impugned provision in a legislation is compatible with 
the fandamental rights or the -Constitutional provisions (substantive 
judicial review) or it falls foul of the federal distribution of powers 
(procedural judicial review) - If it is not found to be so, no further 
exercise is needed as challenge would fail - On the other hand, if it 
·is found that Legislature lacks competence as. the subject legislated D 
was not within the powers assigned in the list in VII Schedule, no 
farther enquiry is needed and such a law is to be declared as ultra 
vires the Constitution - However, while undertaking substantive 
judicial review, if it is found that the impugned provision appears 
to be violative of fundamental rights or other
Constitutional rights, 
the Court reaches the second stage of review -:- At this second phase 
· of enquiry, the Court is supposed to undertake the. exercise as to 
w.hether the impugned provision can still be saved by reading it 
down so as to bring it in conformity with the Constitutional provisions 
· - If that is not achievable then the enquiry enters the third stage -
If the offending portion of the statute is severable, it is severed and 
the Court strikes down the impugned provision declaring the same 
as unconstitutional - Administrative law. 
Disposing of the writ petitions, the Court 
HELD: 1. Scope of Judicial Review of Legislative Act 
Under the CO'nstitution; Supreme Court as well as High 
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Courts are vested with the power of judicial review of not. only 
administrative acts of the executive but legislative enactments 
passed by tJle legislature as well. This power is given to the 
High Courts under Article 226 of the_ Constitution .and to the H
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A Supreme Court under Article 32 as well as Article 136 of the 
Constitution. At the same time, the parameters on which the 
power of judicial review of administrative act is to be undertaken 
are different from the parameters on which validity of legislative 
enactment is to be examined. No doubt, in exercise of its power 
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of judicial review of legislative action, the Supreme Court, or for 
that matter, the High Courts can declare law passed by the 
Parliament or the State Legislature as invalid. However, the 
power to strike down primary legislation enacted by the Union 
or the State Legislatures is on limited grounds. Courts can strike 
down legislation either on the basis that it falls foul of federal 
distribution of powers or that it contravenes fundamental rights 
or other Constitutional rights/provisions of the Constitution of 
India. No doubt, since. the Supreme Court and the High Courts 
are treated as the 'ultimate arbiter in all matters involving 
interpretation of the Constitution, it is the Courts which have 
the final say on questions relating to rights and whether such a 
D right is violated or not. The basis of this statement lies in Article 
13(2) of the Constitution which proscribes the State from making 
'any law which takes away or abridges the right conferred by Part 
Ill', enshrining fundamental rights. It categorically states that 
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any law made in contravention thereof, to the extent of the
contravention; be void. In the context of judicial review of 
legislation, Article 372 (1) gives an indication that all laws enforced 
prior to the commencement of the Constitution can be tested for 
compliance with the provisions Of the Constitution by Courts. 
[Paras 73, 74][77-G-H; 78-A-D, G] 
F 
Union of India & Ors. v. Sicom Limited & Am: (2009) 2 
SCC 121 : [2008) 17 SCR 120; Ashok Kumar Thakur 
v. Union of India & Ors. (200~) 6 SCC 1 : [2008) 4 
SCR 1; State of A.P. & Ors. v. McDowell & Co. & Ors. 
(1996) 3 SCC 709 : [19961 3 SCR 721 - relied on. 
G 
United States Department of Justice v. Reporters 
Committee for Freedom of the Press 489 U.S. 749 (1989) 
- referred to. 
1.2 A legislation cannot be declared unconstitutional on the 
ground that it is 'arbitrary' inasmuch as examining as to whether 
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a particular Act is arbitrary or not implies a value judgment and
BINOY VISWAM v. UNION OF INDIA & ORS. 
7 
the courts do not examine the wisdom of legislative choices and, A 
therefore, cannot undertake this exercise. [Para 78] [84-A-B] 
Rajbala & Ors. v. State of Haryana & Ors. (2016) 2 
SCC 445 : [2015] 12 SCR 1106; Jindal Stainless Ltd. 
& Anr. v. State of Haryana & Ors. (2016) 11 SCALE 1 
- relied on. 
B 
1.3 Afortiori, a law cannot be invalidated on the ground that 
the Legislature did not apply its mind or it was prompted by some 
improper motive. 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 the Parliament or the State c 
legislatures. However, while undertaking this ~xercise of judicial 
review, the same is to be done at three levels. In the first stage, 
the Court would examine as to whether impugned provision in a 
legislation is compatible with the fundamental rights or the 
Constitutional provisions (substantive judicial review) or it falls 
foul of the federal distribution of powers (procedural judicial D 
review). If it is not found to be so, no further exercise is needed 
as challenge would fail. On the other hand, if it is found that 
Legislature lacks competence as the subject legislated was not 
within the powers assigned in the list in VII Schedule, no further 
enquiry is needed and such a law is to be declared as ultravires 
the Constitution. However, while undertaking substantive judicial 
review, if it is found
that the impugned provision appears to be 
violative of fundamental rights or other Constitutional rights, the 
Court reaches the second stage of review. At this second phase 
of enquiry, the Court is supposed to undertake the exercise as 
to whether the impugned provision can still be saved by reading 
it down so as to bring it in conformity with the Constitutional 
provisions. If that is not achievable then the enquiry enters the 
third stage. If the offending portion of the statute is severable, it 
is severed and the Court strikes down the impugned provision 
declaring the same as unconstitutional. [Paras 79, 80)(85-A-E] 
2.1 Concept of 'Limited Government' and its impact on 
powers of Judicial Review 
Undoubtedly, the Constitution of India, as an instrument of 
governance of the State, delineates the functions and powers of 
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A each wing of the State, namely, the Legislature, the Judiciary and 
the Executive. It also enshrines the principle of separation of 
powers which mandates that each wing of the ·state has to function 
within its own domain and no wing of the State is entitled to trample 
over the function assigned to the other wing of tlte State. This. 
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fundamental document of governance also contains principle of 
federalism wherein the Union is assigned cer.taln powers and 
likewise powers of the State are also prescribed. In this context, 
the Union Legislature, i.e. the Parliament, as well a,s the State 
Legislatures are given specific areas in respect of which they 
have power to legislate. That is so stipulated in Schedule VII of 
the Constitution wherein List I enumerates the subjects over 
which Parliament has the dominion, List II spells out those areas 
where the State Legislatures have the power to make laws while 
List III is the Concurrent List which is accessible both to the 
Union as well as the State Governments. The Scheme pertaining 
to making laws by the Parliament as well as by the Legislatures 
D of the State is primarily contained in Articles 245 to 254 of the 
Constitution. Therefore, it cannot be disputed that each wing of 
the State to act within the sphere delineated for it under the 
Constitution. It is correct that crossing these limits would render 
the action of the State ultra vires the Constitution. When it
comes 
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to power of taxation, undoubtedly, power to tax is treated as 
sovereign power of any State. [Para 82)(85-G-H; 86-A-DJ 
2.2 In a democratic society governed by the Constitution, 
there is a strong tr~nd towards the Constitutionalisation of 
democratic politics, where the actions~or democratic elected 
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Government are judged in the light of the Constitution, In this . 
context, judiciary assumes the roie of protector of the Constitution 
and democracy, being the ultimate arbiter in all matters involving 
the interpretation of the Constitution. When it comes. to 
exercising the power of judicial review of a legislation, the scope 
of such a power has to be kept in mind and the power is to be 
G exercised within the limited sphere assigned to the judiciary to 
undertake the judicial review. Therefore, unless the petitioner 
demonstrates that the Parliament, in enacting the impugned 
provision, has exceeded its power prescribed in the Constitution 
or this provision violates any of the provision, the argument 
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BINOY VISWAM v. UNION OF INDIA & ORS. 
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predicated on 'limited governance' will not succeed. (Paras 84, A 
85] [88-G-H; 89-A-CJ 
State of Madhya Pradesh & Anr. v. Thakur Bharat Singh 
AIR 1967 SC 1170 : [1967) 2 SCR 454 - relied on. 
3.1 TheAadhaar Act is enacted to enable the Government 
to identify individuals for delivery of benefits, subsidies and B 
services under various welfare schemes. Section· 7 of the Aadhaar 
Act states that proof of Aadhaar number is necessary for receipt" 
of such subsidies, benefits and services. At the same time, it 
cannot be disputed that once a person enro)s himself and obtains 
Aadhaar number as mentioned in Section 3 of the Aadhaar Act, c 
such Aadhaar number can be used for many other purposes. In 
fact, this Aadhaar number becomes the 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 
the purpose of obtaining benefits, proof of Aadhaar card is 
necessary as per Section 7 of the Act. Proviso to Section 7 D 
stipulates that if an Aadhaar number is not assigned to enable an 
individual, he shall be offered alternate and viable means of 
identification for delivery of the subsidy, benefit or service. 
According to the petitioners, this proviso, with acknowledges 
alternate and viable means of identification, and therefore makes 
Aadhaar optional and voluntary and the enrolment is not necessary 
even for the purpose of receiving
subsidies, benefits and services 
under various schemes of the Government. The respondents, 
however, interpret the proviso differently and there plea is that 
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the words 'if an Aadhaar number is not assigned to an individual' 
deal with only that situation where application for Aadhaar has 
been made but for certain reasons Aadhaar number has.not been 
assigned as it may take some time to give Aadhaar card. 
Therefore, this proviso is only by way of an interim measure till 
Aadhaar number is assigned, which is otherwise compulsory for 
obtaining certain benefits as stated in Section 7 of the Aadhaar G 
Act. Fact remains that as per the Government and UIDAI itself, 
the requirement of obtaining Aadhaar number is voluntary. It 
has been so claimed by UIDAI on its website. However, for the' 
·purposes of Income Tax Act, Section 139AA makes it compulsory 
for the assessees to give Aadhaar number which means insofar 
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[2017] 7 S.C.R. 
A as income tax assessees are concerned, they have to necessarily 
enroll themselves under the Aadhaar Act and obtain Aadhaar 
number which will be their identification number as that has 
become the requirement under the Income Tax Act. The 
contention that since enrollment under Aadhaar Act is voluntary, 
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it cannot be compulsory under the Income Tax Act, cannot be 
countenanced.[Paras 90, 92][90-C-G; 91-C) 
Municipal Corporation of Delhi v. Shiv Shanker (1971) 
1 SCC 442 : [1971] 3 SCR 607 - relied on. 
3.2 A harmonious reading of the two enactments would 
clearly suggests that whereas enrollment of Aadhaar 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 the benefits 
of schemes and services, it is upto a person to avail those benefits 
or not. On the other hand, purpose behind enacting Section 
D 
139AA is to check a menace of black money as well as money 
laundering and also to widen the income tax net so as to cover 
those persons who are evading the payment of tax. There are 
few cases where interim orders are passed by Court where the 
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Court was of the opinion that till the matter is dedded finally in 
the context of Right to Privacy issue, the implementation of the 
said Aadhaar scheme would remain voluntary. In fact, the main 
issue as to whether Aadhaar
card scheme whereby biometric data 
of an individual is collected violates Right to Privacy and, 
therefore, is offensive of Article 21 of the Constitution or not is 
yet to be decided. In the process, the Constitution Bench is also 
called upon to decide as to whether Right to Privacy is a part of 
Article 21 of the Constitution at all. Therefore, no final decision 
has been taken.[Paras 93, 94][92-G-H; 93-C-D] 
Whether Section 139AA of the Act is discriminatory and 
offends Article 14 of the Constitution of India? 
. 
4.1 Article 14 forbids class legislation; it does not forbid 
reasonable classification of persons, objects and transactions by 
the Legislature for the purpose of achieving specific ends. 
Classification to be reasonable should fulfil the following two tests: 
(1) It should not be arbitrary, artificial or evasive. It should be
BINOY VISWAM v. UNION OF INDIA & ORS. 
11 
based on an intelligible differentia, some real and substantial A 
distinction, which distinguishes persons or things grouped 
together in the class from others left out of it. (2) The differentia 
adopted as the basis of classification must have a rational or 
reasonable nexus with the object sought to be achieved by the 
statute in question. Thus, Article 14 in its ambit and sweep B 
involves two facets, viz., it permits reasonable classification which 
is founded on intelligible differentia and accommodates the 
practical needs of the society and the differential must have a 
rational relation to the objects sought to be achieved. Further, it 
does not allow any kind of arbitrariness and ensures fairness and 
equality of treatment. It is the fonjuris of our Constitution, the C 
fountainhead of justice. Differential treatment does not per se 
amount to violation of Article 14 of the Constitution and it violates 
Article 14 only when <there is no reasonable basis and there are 
several tests to decide whether a classification is reasonable or 
not and one of the tests will be as to whether it is conducive to 
the functioning of modern society. [Para 96][94-F-H; 95-A-C] 
Sri Srinavasa Theatre & Ors. v. Government of Tamil 
Nadu & Ors. (1992) 2 SCC 643 : [1992] 2 SCR 164; 
Chiranjit Lal Chowdhuri v. Union of India & Ors. [1950) 
SCR 869 - relied on. 
4.2 Unearthing black money or checking money laundering 
is to be achieved to
whatever extent possible. Various measures 
can be taken in this behalf. If one of the measures is introduction 
of Aadhaar into the tax regime, it cannot be denounced only 
because of the reason that the purpose would not be achieved 
fully. Such kind of :menace, which is deep rooted, needs to be 
tackled by taking multiple actions and those actions may be 
initiated at the same time. It is the combined effect of these 
actions which may yield results and each individual action 
considered in isolation may not be sufficient. Therefore, rationality 
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of a particular measure cannot be challenged on the ground that G 
it has no nexus with the objective to be achieved. Of course, 
there is a definite objective. For this purpose alone, individual 
measure cannot be ridiculed. The committee headed by Chairman, 
CBDT on 'Measures to tackle black money in India and Abroad' 
has in no uncertain terms, suggested that one singular proof of 
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[2017] 7 S.C.R. 
A identity of a person for entering into finance/business transactions 
etc may go a long way in curbing this foul practice. That apart, 
even if solitary purpose of de-duplication of PAN cards is taken 
into consideration, that may be sufficient to meet the second test 
of Article 14. It has come on i:ecord tl1at 11.35 lakhs cases of 
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duplicate PAN or fraudulent PAN cards have already been 
detected and out of this 10.52 lakh cases pertain to individual 
assessees. This figure, by no means, can be termed as miniscule, 
to harm the economy and create adverse effect on the nation. It 
cannot be said that there is no nexus with the objective sought to 
be achieved. [Paras 99, 100)(95-G-H; 96-A-F] 
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 
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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 
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BINOY VISWAM v. UNION OF INDIA & ORS. 
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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 
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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. 
5.1 Whether impugned provision is violative of Article 
19(1)(g) 
c 
Invocation of'provisions of Article 19(1)(g) of the 
Constitution by the petitioners was in the context of proviso to 
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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 
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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 
G 
to. 
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. 
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 
B 
c 
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 
E 
F 
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] 
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 
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. 
c 
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
16 
SUPREME COURT REPORTS 
(2017] 7 S.C.R. 
A to receive such benefits. One of the main reasons is failure to 
B 
c 
. 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) 
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 
E 
F 
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) 
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 
E 
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 
H 
F
18 
SUPREME COURT REPORTS 
[2017) 7 S.C.R. 
A 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 
B 
c 
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 . 
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 
. E 
F 
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 
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
20 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
A 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 
B scheme in this behalf is devised at the earliest.[Para 127)(120-
H; 121-A-D) 
c 
D 
E 
F 
G 
H 
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.
BINOY VISWAM v. UNION OF INDIA & ORS. 
21 
State of Bihar AIR 1958 SC 731 : [1959] SCR 629; 
A 
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. 
B 
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) 
c 
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 
D 
[1954] SCR 1077 
referred to 
Para 9 
[1964] SCR 332 
referred to 
Para9 
[1955] 2 SCR 225 
referred to 
Para 21 
[1978] 3 SCR 334 
referred to 
Para 22 
E 
[2003) 1 Suppl. SCR ·1· 
referred to 
Para 22 
[1959] SCR 279 
referred to 
Para 28 
(2016) 1 sec ~53 
referred to 
Para 30 
[1967] 2 SCR 454 
relied on 
Para 35 
(2014) 5 sec 438 
referred to 
Para 37 
F 
[1979) 1 SCR 392 
referred to 
Para 37 
[20111 4 SCR 1057 
referred to 
Para 37 
[1973] 3. SCR 39 
referred to 
Para40 
. 
! 
. 
[2014) 6 SCR 873 
referred to · · Para 41 
.. 
G 
. [2006] 7 Suppl. SCR "336 
referred to 
Para44 
·[1975) 3 SCR 946 
referred to
Para 46 
[2007] 12 SCR 991 
referred to 
Para 46 
[1966] 3 SCR 275 
referred to 
Para 48 
H

22 
SUPREME COURT REPORTS 
. [2017] 7 S.C.R. 
A 
[2003) 3 SCR 106 
referred to 
Para 50 
[2011) 13 SCR 636 
referred to 
Para 52 
[2012] 6 SCR 661 
referred to 
Para 53 
[1995) 5 Suppl. SCR 551 
referred to 
Para 54 
B 
[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 
referred to 
Para 56 
c 
(2011) 14 sec 331 
referred to 
Para 61 
[2013) 4 SCR 66 
referred to 
Para 62 
(2013) 14 sec 368 
referred to 
Para 64 
(2010) 5 sec 318 
referred to 
Para 65 
D 
(2011) 1 sec 155 
referred to 
Para 66 
[1994) 4 Suppl. SCR 353 
referred to 
Para 71 
[2008] 17 SCR 120 
relied on 
Para 74 
E 
[2008) 4 SCR 1 
relied on 
Para 76 
[1996] 3 SCR 721 
relied on 
Para 77 
(2015) 12 SCR 1106 
relied on 
Para 78 
(2016) 11 SCALE 1 
relied on 
Para 82 
F 
[1971) 3 SCR 607 
relied on 
Para 92 
[1992) 2 SCR 164 
relied on 
Para 94 
(1950) SCR 869 
relied on 
Para 94 
[1974) 2 SCR 348 
referred to 
Para 104 
G 
CIVIL ORIGINAL'JURISDICTION: Writ Petition (C) No. 247 
of2017. 
Under Article 32 of the Constitution oflndia 
WITH 
H 
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 
A. K. SIKRI, J. I. In these three writ petitions filed by the 
petitioners, who claim themselves to be pubic spirited persons, challenge 
c 
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 
number; 
(ii) in the return of income: 
E 
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
24 
SUPREME COURT REPORTS 
[2017]7 S.C.R. 
A 
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. 
B 
(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. 
·C 
D 
E 
F 
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. 
G 
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 '·. 
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 B 
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. 
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. · 
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. 
E 
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 
B 
c 
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. 
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 
D 
any statutory backing but was launched and contifmed to operate in 
exercise of executive power of the Government. It may also be 
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. 
E 
F 
G 
H 
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
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. 
c 
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." 
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, 
E 
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 
1 AIR 1954 SC 300 
2 AIR 1963 SC 1295 
H
28 
A 
B 
c 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
Privacy is doubtful. At the same time, it was also accepted that 
subsequently smaller Benches of two or three Judges of this Court had 
given the judgments recognising the Right to Privacy as part of Article 
21 of the Constitution. On that basis, respondents submitted that the 
matters were required to be heard by a Larger Bench to debate important 
questions like: 
(i) Whether there is any Right to Privacy guaranteed under the 
Constitution; and 
(ii) If such a Right exists, What is the source and what are the 
contours of such a Right as there is no express provi§fon in the 
Constitution adumbrating the Right to Privacy. 
10. Though, this suggestion of the respondents were opposed by 
the counsel for the petitioners, the said Bench still deemed it proper ~o 
refer the matter to the Larger Bench and the reasons for taking this 
course of action are mentioned in paras 12 and 13 of the order dated 
D 
August 11, 2015 which reads as under: 
E 
F 
G 
H 
"12. We are of the opinion that the cases on hand raise far 
reaching questions of importance involving_ interpretation of the 
Constitution, What is at stake is the amplitude of the fundamental 
rights including that precious and inalienable right under Article 
21. If the observations made in MP. Sharma (supra) and Kharak 
Singh (supra) are' to be read literally and accepted as the law of 
this country, the (undamental rights guaranteed under the 
Constitution oflndia and
more particularly right to liberty under 
Article 21 would be- denuded of vigour and vitality. At the same 
time, we are also of the opinion that the institutional integrity and 
judicial discipline require that pronouncement made by larger 
Benches of this Court cannot be ignored by the smaller Benches 
without appropriately explaining the reasons for not following the 
pronouncements made by such larger Benches. With due respect 
to all the learned Judges who rendered the subsequent judgments 
- where right to privacy is asserted or referred to their Lordships 
concern for the liberty of human beings, we are of the humble 
opinion that there appears to be certain amount of apparent 
unresolved contradiction in the law declared by this Court. 
13. Therefore, in our opinion to give a quietus to the kind of 
controversy raised in this batch of cases once for all, it is better
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
29 
that ratio decidendi of MP. Sharma (supra) and Kharak Singh 
A 
(supra) is scrutinized and the jurisprudential correctness of the 
subsequent decisions of this Court where the right to privacy is 
either asserted or referred be examined and authoritatively decided 
by a Bench of appropriate strength. · 
(emphasis supplied)" 
B 
11. While referring the matter as aforesaid, by another order of 
the even date, the Bench expressed that it would be desirable tl;J.at the 
matter be heard at the earliest. On the same day, yet another order was 
passed by the Bench in those petitions giving certain interim directions 
which would prevail till thematter is finally decided by the Larger Bench. c 
We would like to reproduce this order. containing the said interim 
arrangement in toto: 
"I N T E R I M 0 R D E R 
After the matter was referred for decision by a larger Bench, 
the learned counsel for the petitioners prayed for further interim D 
orders. The last interim or.der in force is the order of this Court 
dated 23 .9.2013 which reads as follows:-
"All the matters require to be heard finally. List all matters for 
final hearing after the Constitution Bench is over .. 
In the meanwhile, no person should suffer for not getting the 
Aadhaar card inspite 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." 
It was submitted by Shri Shyam Divan, learned counsel for the 
petitioners that the petitioners having pointed out a serious breach 
E 
F 
of privacy in their submissions, preceding the reference, this Court 
may grant an injunction restraining the authorities from proceeding 
further in the matter of obtaining biometrics etc. for an Aadhaar 
G 
card. Shri Shyam Divan submitted that the biometric information 
_ of an 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. 
H
30 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
The learned Attorney General pointed out, on the other hand, 
that this Court has at no point of time, even while making the 
inter!m order dated 23.9.2013 granted an injunction restraining 
the Unique Identification Authority oflndia from going ahead and 
obtaining biometric or other information from a citizen for the 
purpose of a Unique Identification Number, better known as 
"Aadhaar card". It was further submitted that the respondents 
have gone ahead with the project and have issued Aadhaar cards 
to about 90% of the population. Also that a large amount of money 
has been spent by the Union Government on this project for issuing 
Aadhaar cards and that in the circumstances, none of the well-
known consideration for grant of injunction are in favour of the 
petitioners. 
The learned Attorney General stated that the respondents do 
not share any personal information of an Aadhaar card holder 
through biometrics or otherwise with any other person or authority. 
This statement allays the apprehension for now, that there is a 
widespread breach of privacy of those to whom an Aadhaar card 
has been issued. It was further contended on behalf of the 
petitioners that there still is breach of privacy. This is a matter 
which need not be gone into further at this stage. 
· 
The learned Attorney General has further submitted that the 
Aadhaar card is of great benefit since it ensures an effective 
implementation
of several social benefit schemes of the 
Government like MGNREGA, the distribution of food, ration and 
kerosene through PDS system and grant of subsidies in the 
distribution of LPG It was, therefore, submitted that restraining 
the respondents from issuing further Aadhaar cards or fully utilising 
the existing Aadhaar cards for the social schemes of the 
Government should be allowed. 
The learned Attorney General further stated that the respondent 
Union of India would ensure that Aadhaar cards would only be 
issued on a consensual basis after informing the public at large 
about the fact that the preparation of Aadhaar card involving the 
parting of biometric information of the individual, which shall 
however not be used for any purpose other than a social benefit 
schemes.
BINOY VISWAM v. UNION OF INDIA & ORS: 
[A. K. SIKRI, J.] 
31 
Having considered the matter, we are ofthe view that the balance 
A 
of interest would be best served, till the matter is finally decided 
by a larger Bench if the U11ion of India or the UIDA proceed in 
the following manner:-
!. The Union oflndia shall give wide publicity in the electronic 
and print media including radio and television networks that it is 
B 
not mandatory for a citizen to obtain an Aadhaar card; 
2. The production of an Aadhaar card will not be condition for 
obtaining any benefits otherwise due to a citizen; 
3. The Unique Identification Number or the Aadhaar card will not 
be used by the respondents for any purpose other than the PDS 
C 
Scheme and in particular for the purpose of distribution of 
foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar 
card may also be used for the purpose of the LPG Distribution 
Scheme; 
4. The information about an individual obtained by the Unique 
D 
Identification Authority of India while issuing an Aadhaar card 
shall not be used for any other purpose, save as above, except as 
may be directed by a Court for the purpose of criminal investigation. 
Ordered accordingly." 
12. In nutshell, the direction is that obtaining anAadhaar Card is 
not mandatory and the benefits due to a citizen under any scheme are 
not to be denied in the absence ofAadhaar Card. 
Further, unique 
identification number or the Aadhaar Card was to be used only for the 
PDS
Scheme and, in particular, for the purpose of distribution of food 
grains etc. and cooking fuels suc.h as Kerosene and LPG Distribution 
Scheme, with clear mandate that it will not be used by the respondents 
E 
F 
for any other purpose. Even the information about the individual collected 
while issuing an Aadhaar Card was not to be used for any other. purpose, 
except when it is directed by the Court for the purpose of criminal 
investigation. Thus, making of Aadhaar Card was not to be made 
G 
mandatory and it was to be used only for PDS Scheme and LPG 
Distribution Scheme. Thereafter, certain applications for mo.dification 
of the aforesaid order dated August 11, 2015 was filed before this Court 
by the Union oflndia and a five Judges Bench of this Court was pleased 
to pass the following order: 
H
32 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
"3. After hearing the learned Attorney General for India and 
other learned senior counsels, we are of the view that in paragraph 
3 of the Order dated August 11, 2015, if we add, apart from the 
other two Schemes, namely, PDS .Scheme and the LPG 
Distribution Scheme, the Schemes like The Mahatma Gandhi 
National Rural Employment Guarantee Scheme 12 (MGNREGS), 
National Social Assistance Progi:aipme (Old Age Pensions, Widow 
Pensions, Disability Pensions) Prime Minister's Jan Dhan Yojana 
(PMJDY) and Employees' Provident Fuq4 Organisation (EPFO) 
for .the present, it would not dilute earlier order passed by this 
Court. Therefore, we now include the aforesaid ~chemes apart 
from the other two Schemes that this Court has permitted in its 
earlier order dated August~ 1, 2015. 
4. We impress upon the Union oflndia that it shall strictly follow 
. all the earlier orders passed by this Court commencing from 
September 23, 2013. 
5. We will also make it clear that the Aadhaar card Scheme is 
purely voluntary and it cannot be made mandatory till the matter 
is finally decided by this Court qne way or the other." 
Thus, Aadhaar is permitted for some more schemes as well. 
13. The petitioner herein, laying stress on' the above orders, plead 
that from a perusal of the various interim orders passed by this Court it 
is· amply clear that the Court has reiterated the position that although 
there is no interim.order against
the colle~on of information from the 
citizens for the purpose of enrolment for Aadhaar, the scheme is purely 
voluntary and the same is not to be made mandatory by the Government. 
14. While matters stood thus, the Government oflndia brought in 
a legislation to govern the Aadhaar Scheme with the enactment of the 
Aadhaar (Targeted Delivery of Financial and other subsidies, benefits 
and services) Act, 2016.(hereinafter referred to as the 'Aadhaar.Act'). 
G 
15. Introduction to the said Act gives the reasons forp.assing that 
Act and Statement of Objects and Reasons mention the objectives sought 
to be achieved with the enactment of Aadhaar Act. Introduction reads 
H 
asunder: 
"The Unique Identification Authority oflndia was established by 
a resolution of the Government of India in 2009. It was meant
BINOY VISWAM·v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
0 
33 
primarily to lay down policies and to implement the Unique 
A 
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 ofbeneficiaries 
for transfer of benefits, subsidies, services and other purposes. 
Later on, it was felt that the process of enrolment, authentication, 
security, confidentiality and use of Aadhaar related information 
be made statutory so as to facilitate the use of Aadhaar·number 
for delivery of various benefits, subsidies and services, the 
expenditures of which were incurred from or receipts therefrom 
formed part of the Consolidated Fund oflndia. 
The Aadhaar (Targeted Delivery ofF inancial and Other Subsidies, 
Benefits and Services) Bill, 2016 inter alia, provides for 
establishment ofUnique Identification Authority of India, issuance 
B 
c. 
of Aadhaar number to individuals, maintenance and updating of 
information in the Central Identities Data Repository, issues 
pertaining to security, privacy and confidentiality of information 
D 
as well as offences and penalties for contravention of relevant 
statutory provisions." 
16. In the Statement of Objects and Reasons, it is inter alia 
mentioned that though number of social benefits schemes have been 
floated by the Governrnent, the failure to establish identity of an individual 
has proved to be a major hindrance
for successful implementation of 
those programmes as it was becoming difficult to ensure that subsidies, 
benefits and services reach the unintended beneficiaries in the absence 
of a credible system to authenticate identity of beneficiaries. Statement 
of Objects and Reasons also discloses that over a period of time, the use 
of Aadhaar Number has been increased manifold and, therefore, it is 
also necessary to take measures relating to ensuring security of the 
information provided by the individuals while enrolling for Aadhaar Card. 
Having these parameters in mind, para 5 of the Statement of Objects 
and Reasons enumerates the objectives which Aadhaar Act seeks to 
achieve. It reads as under: 
""5. The 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 
E 
F 
G 
H
34 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
A 
demographic and biometric information to the Unique 
Identification Authority oflndia; 
(b) requiring Aadhaar numbers for identifying an individual for 
delivery of benefits, subsidies, i(nd services the expenditure is 
incurred from or the receipt therefrom forms part of the 
B 
Consolidated Fund oflndia; 
c 
D 
E 
F 
G 
( c) authentication of the Aadhaar number of an Aadhaar number 
holder in relation to his demographic and biometric information; 
( d) establishment of the Unique Identification Authority oflndia 
consisting of. a Chairperson, two Members and a Member-
Secretary to perform functions in pursuance of the objectives 
above; 
( e) maintenance and updating the information of individuals in the 
Central Identities Date Repository in such manner as may be 
specified by regulations; 
0 
· (f) measures pertaining to security, privacy and confidentiality of 
information in possession or control of the Authority including 
information stored in the .Central Identities Date Repository; 
and 
(g) offences and penalties for contravention of relevant statutory . 
provisions." 
17. Some of the provisions of this Act, which have bearing on the 
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(1), 2(m), 2(n), Section 3, Section 
7, Section 28, Section 29 and Section 30 reads as under: 
"2(a) "Aadhaar number" means an identification number issued 
to an individual
under sub-section (3) of section 3; 
xxx 
xxx 
xxx 
2(c) "authentica.tion" means the pr.ocess by which the Aadhaar 
number alongwith demographic .information or biometric 
information of an individual is submitted to the Central Identities . 
Data Repository for its verification and such Repository verifies 
the correctness, or the lack thereof, on the basis of information 
available with it;
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
35 
2( d) "authentication record" means the record. of the time of A 
authentication and identity of the requesting entity and the response 
provided by the Authority thereto; 
2( e) "Authority" means the 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 an individual as may be 
specified by regulations; 
B 
2(h) "Central Identities Data Repository" means a centralised c 
database in one or more locations containing all Aadhaar numbers 
issued to Aadhaar number holders along with the corresponding 
demographic information and biometric information of such 
individuals and other information related thereto; 
xxx 
xxx 
xxx 
2(k) "demographic information" includes information relating to 
the name, date of birth, address and other relevant information of 
an individual, as may be specified by regulations for the purpose 
of issuing an Aadhaar number, but shall not include race, religion, 
caste, tribe, ethnicity, language, records of entitlement, income or 
medical history; 
· 
2(1) "enrolling agency" means an agency appointed by the 
Authority or a Registrar, as the case may be, for collecting 
demographic and biometric information of individuals under this 
Act; 
2(m) ''.enrolment" means the process, as may be specified by 
regulations, to collect
demographic and biometric information from 
individuals by the enrolling agencies for the purpose of issuing 
Aadhaar numbers to such individuals under this Act; 
. 
. 
2(n) "identity information" in respect ofan individual, includes his 
Aadhaar number, his biometric information and his demographic 
information; . 
3. Aadhaar number. - (1) Every resident shall be entitled to 
obtain an Aadhaar number by submitting his demographic 
D 
E 
F 
G 
H
36 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
A 
information and biometric information by undergoing the process 
of enrolment: 
B 
c 
D 
E 
F 
G 
H 
Provided that the Central Government may, from time to time, 
notify such. other category of individuals who may be entitled to 
obtain an Aadhaar number. 
(2) The enrolling agency shall, at the time of enrolment, inform 
the individual undergoing enrolment of the following details in such 
manner as may be specified by regulations, namely: 
_(a-) the manner_ in which the information shall be used; ' 
· (b) the nature of recipients with whom· the information is 
intended to be shared during authentication; and 
( c) the existence of a right to access information, the procedure 
for making requests for such access, and details of the person 
or department in-charge to whom such requests can be 
made. 
(3) On receipt of the demographic.information and biometric 
information under sub~section (l ), the Authority shall, after verifying 
the information, in such manner as may be specified by regulations, 
issue an Aadhaar number to such individual. 
xxx 
xxx 
xxx 
7. Proof of Aadhaar number necessary for receipt of certain 
subseidies, benefits ·and services, etc. - The Central 
Government or, as the case may be, the State Government may, 
for the purpose of establishing identity of an individual as a condition 
for receipt of a subsidy, benefit or service for which the expenditure 
is incurred from, or the receipt therefrom forms
part of, the 
Consolidated Fund oflndia, require that sui;h individual undergo 
authentication, or furnish proof of possession of Aadhaar number 
or in the case of an individual to whom no Aadhaar µumber has 
been assigned, such individual makes an application for enrolment: 
Provided that if an Aadhaar number is not assigned to an 
individual, the individual shall be offered alternate and viable means 
of identification for delivery of the subsidy, benefit or service. 
xxx 
xxx 
xxx
BINOY VISWAM v. UNION OF INDIA & ORS. 
37 
[A. K. SIKRI, J.] 
28. Security and confidentiality of information - (1) The 
A 
Authority shall ensure the security 9f identity information and 
authentication records ofindividuals. 
(2) Subject to the provisions of this Act, the Authority shall ensure 
confidentiality of identity information and authentication records 
ofindividuals. 
B 
(3) The Authority shall take all necessary measures t.o ensure 
that the information in the possession or control of the Authority, 
including information stored in the Central Identities Data 
Repository, is se3ured and protected f!gainst access, use or 
disclosure not permitted under this Act or regulations made · c 
thereunder, and against accidental or intentional destruction, loss 
. or damage. 
(4) Without prejudice to sub-sections (1) and (2), the Authority 
shall-
( a) adopt and implement appropriate technical and organisational 
D · 
security measures; 
(b) ensure that the agencies, consultants, advisors or other 
persons appointed or engaged for performing any function 
of the Authority under this Act, have in place appropriate 
technical and organisational security measures for the 
E 
information; and · 
(c) ensure that the agreements or arrangements entered into 
with such agencies, consultants, advisors or other persons, 
·impose obligations equivalent to those imposed on the 
Authority under this Act, and require such agencies, 
F 
consultants, advisors and other persons to act
oply on 
instructions from the Authority. 
(5) Notwithstanding anything contained in any other law for the 
time being in force, and save as otherwise provided in this Act, 
the Authorit)'' or any of its officers or other employees or any 
G 
agency that maintains the Central Identities Data Repository shall 
not, whether during his service or thereafter, reveal any information 
stored in the Central Identities Data Repository or authentication 
record to anyone: 
H
38 
SUPREME COURT REPORTS 
[2017) 7 S.C.R. 
A 
Provided that an Aadhaar number holder may request the 
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.-(!) No core.biometric 
B 
inforrl1:ation, collected or created under this Act, shall be~ 
c 
D 
E 
F 
G 
H 
(a) shared with an)'one for any reason whatsoever; or 
(b) used for any purpose other than generation of Aadhaar 
numbers and authentication under this Act. 
(2) The identity information, other than core biometric information, 
collected or created under this Act may be shared only in 
accordance with the provisions of this Act and in such manner as 
may be specified by regulations. 
(3) No identity information available with a requesting <)ntity shall 
be-
( a) used for any purpose, other than that specifie4 to the· 
individual at the time of submitting any identity information 
for authentication; or 
(b) disclosed further, except with the prior consent of the 
individual to whoni such information relates. 
( 4) No Aadhaar number or core biometric information collected 
or created under this Act in respect of an Aadhaar number holder 
shall be published, displayed or posted publicly, exc~pt for the 
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
0 be "electronic record" and 
"sensitive personal data or information'', and the provisions 
contained in the Information Technology Act, 2000 (21 of 2000) 
and t~e rules made thereunder shall apply to sut;h information, in 
.addition to, and to the extent not in derogation of the provisions of 
this Act. 
Explanation.- For the purposes of this section, the expressions--
BINOY VISWAM v. UNION OF INDIA & ORS. 
. [A. K. SIKRI, J.] 
39 
(a) "electronic form" shall have the same meaning as assigned 
A 
to it in clause (r) of sub-section (I) of section 2 of the 
Information Technology Act, 2000 (21 of2000); 
(b) "electronic record" shall have the same meaning as assigned 
to it in clause (t) of sub-section (I) of section 2 of the 
Informatipn Technology Act, 2000 (21 of2000); 
B 
· "sensitive personal data or information" shail have the same 
meaning as assigned to it in clause (iii) of the Explanation to section 
43A of the Information Technology Act, 2000 (21 of2000)." 
That apart, Chapter VII which comprises Sections 34 to 47, 
mentions various offences and prescribes penalties therefor. 
18. Even the Constitutional validity of the aforesaid Act is 
challenged in this Court in Writ Petition (C) No. 797 of2016, which has 
also been tagged along with Writ Petition (C) No. 494 of2012, the lead 
matter in the batch of matters which has been referred to the Constitution 
Bench. 
c 
D 
19. At this juncture, by Finance Act, 2017, Income Tax Act is 
amended with introduction of Section l 39AA which provision has already 
been reproduced. It would be necessary to mention at this stage that 
since challenge to the very concept of Aadhaar i.e. unique identification 
number is predicated primarily on Right to Privacy, when instant writ 
E 
petitions were initially listed before us, we suggested that these matters 
be also tagged along with Writ Petition
(C) No. 494 of2012 and other 
matters which have been referred to the Constitution Bench. Pertinently, 
in the counter affidavit filed on behalf of the Union of India also, plea 
has been taken that the matters be tagged along with those pending writ 
petitions and be decided by a larger Bench. On this suggestion, reaction 
of the learned counsel for the petiti.oners was that petitioners would not 
be pitching their case on the 'Right to Privacy' and would be questioning 
the validity of Section 139 AA of the Act primarily on Articles 14 and 19 
F 
of the Constitution. On this basis, their submission was that this Bench 
should proceed to adjudicate the matter. Therefore, we make it clear at 
G 
the outset that we are not touching upon the privacy issue while 
determining the question of validity of the impugned provision of the 
Act. 
H
40 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
A 
The Arguments 
B 
c 
D 
E 
F 
· 20. Mr. Datar, learned senio~ counsel who ~pened the attack on 
behalf of the petitioners, started by stating the historical fact pertaining 
to introduction of Aadhaar Scheme, leading to the passing of Aadhaar 
Act and thereafter the impugned provision and referring to the various 
orders passed bythis 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 anAadhaar Card would be a voluntarily act on behalf of a 
citizen and it would not be made mandatory till the pendency of the 
petitions which stand referred to the Constitution Bench now. He further 
submitted that even Sedion 3 oftheAadhaar 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 the proviso to Section 
7 oflhe Aadhaar Act as per which a person is not 'to be deprived of 
subsidies as per the various schemes of the Governrn!lnt as the said 
proviso clearly mentions that if an Aadhaar Number is not assigned to 
an individual, he shall be offered alternate and viable means of 
identification for delivery of subsidy, benefit or service. According to 
him, there was a total reversal of the aforesaid approach for assessees 
under the 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 asses sees had to become invalid, that too from the retrospective 
effect i.e. from.the date when.it is issued. :Having regard to the aforesaid, 
the legal submission of Mr. Datar was that Section 139AA was · 
. 
. 
c 
unconstitutional and without legislative competence inasmuch as this:' 
provision was enacted contrary to the binding nature of the judgments/ 
directions of this Court which was categorical that Aadhaar had to remain 
voluntary. Questioning the legislative competence of the legislature to 
enact this particular law; argument of Mr. Datar was that there were 
certain implied limitations of such a legislative competence and one of 
G 
these limitations was that legislature was. debarred from enacting a law 
contrary to the binding nature of decisions of this Court. His submission 
in this behalf was that though it was within the competence of the 
legislature to remove the basis of the Supreme Court decision, at the 
same time, iegislature could not go against the decision which was la;v 
H
BINOY VISWAM v. UNION OF INDIA & ORS. 
41 
[A. K. SIKRT, J.] 
of the land under Article 141 of the Constitution. He argued that, in the 
A 
instant case, legislature could not be construed as removing the basis of 
the various. orders of this Court relating to Aadhaar Scheme itself but 
the impugned provision was inserted in the statute book violating the 
binding nature of those orders. 
21. Dilating on the aforesaid submissions, Mr. Datar argued that 
the earlier orders of this Court dated August 23, 2015 of the main writ 
petition specifically permitted Aadhaar to be used only for LPG and 
PDS. By an order dated October 15, 2015, at the request of the Union 
oflndia, it was permitted to be extended to three other schemes, namely, 
MNREGA, Jan Dhan Yojana· etc. The Constitution Bench made it 
exp,licifly clear that the Aadhaar scheme could not be used for any other 
purpose. According to him,.the Parliament did not in any manner remove 
the basis of these decisions .. The Aadhaar scheme, as enacted under 
c 
the 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 
D 
that the 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 the judicial power. According to Mr. Datar, any 
judgment ofa court, whether interim or final,
whether rendered in the 
context ofa legislation, delegated legislation (rules/notifications) or even 
executive action will continue to be binding. In view of the judgment of E 
this Court in Ram Jawaya Kapoor v. State of Punjab3, which held that 
executive and legislative powers are co-extensive under the Constitutional 
·scheme, .unless the basis of the judgment is- removed by a subsequent 
enactment, it cannot be a.rgued that a decision based on executive 
instruction is less binding than other judgments/orders of the Supreme 
Court, or that the judgment/order loses force ifthe executive instruction 
is replaced.by law. 
· 
22. He also referred to thetlecision in the case of Madan Mohan 
Pati1ak v. Union of India4, wherein the direction of the Calcutta High 
Court to pay bonus to Class-III.and Class-IV employees was sought to 
be nullified by a statutbcy amendment. This was held to be impermiss!ble 
by the seven Judges'Bench. He also relied upon Bakhtawar Trust v. 
M.D. Narayan5, wherein, after citing the case-laws on this point; the 
'(1955) 2 SCR 225 
0 .. 
4 AIR 1978 SC 803 
'(2003) 5 sec 298 
F 
. G • 
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42 
SUPREME COURT REPORTS 
[2011i 1 s.c.R. 
A 
Court reiterated the principle as follows: 
""25~ The decisions referred to above, manifestly show that it is 
open to the legislature to alter the law retrospectively, provided 
the alteration is made in such a manner that it would no more be 
possible for the Court to arrive at the same verdict. In other 
B 
words, the very premise of the earlier judgment should be uprooted, 
thereby resulting in a fundamental change of the circumstances 
upon which it was founded. 
c 
D 
that: 
E 
F 
xxx 
xxx 
xxx 
27. Here, the question before us is, whether the impugned Act 
has passed the test of constitutionality by serving to remove the 
very basis upon which the decision of the High Court in the writ 
petition was based. This question gives rise to further two questions 
- first. what was the basis of the earlier decision; and second. 
what. if any. may be said to be the removal of that basis? 
· (emphasis supplied)" · 
23. Based on the above principles, Mr. Datar's fervent plea was 
(i) The basis of the earlier 0rder of the Supreme Court is that 
Aadhaar will be made a voluntary scheme, it is a consensual 
scheme, and that it is to be expressly limited to six specific 
purposes; and 
(ii) No attempt whatsoever has been made to remove the basis of 
these earlier orders. This alone renders Section l 39AA 
unconstitutional. 
24. Arguing that basis of the orders of this Court was not removed, 
plea of Mr. Datar was that the basis of the
said orders was that serious 
. constitutional concerns had been raised about the Aadhaar scheme, and 
that therefore, pending final decision on its validity by the Supreme Court, 
it ought to remain voluntary. Consequently, in order to remove the basis 
G 
of these orders, the Parliament would have to pass a law overturning the 
voluntar)' character of Aadhaar itself. Notably, a/though Parliament did 
have a chance to do so, it elected not to. The Aadhaar Act came into 
force on March 25, 2016. This was after the order of this Court. 
Significantly, however, the Parliament continued to maintain Aadhaar as · 
H
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
43 
a voluntary scheme vide Section 3 of the said Act Mr. Datar submitted A 
that if Parliament so desired, it could have removed the basis of this 
Court's order by: 
(i) Amending Section 3 so that Aadhaar is made compulsory for 
every resident oflndia; or 
(ii) Introducing either a proviso or adding a sub-section in Section 
B 
3 to the following effect: 
"Notwithstanding anything contained in stib-section (1), the 
Central Government may notify specific purposes for which 
obtaining Aadhaar numbers may be made mandatory in public 
interest." 
C 
25. However, Parliament elected hot 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 the 
Aadhaar Act. He, thus, submitted that far from.taking away the basis of D 
the earlier Supreme Court orders. The 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 a non-obstante claus.e in Section 139AA, 
which would have made it dear that Section would override contrary 
E 
laws - clearly indicating once again that Section 13AA waa not taking 
away the basis of the Court's orders. The emphasis of Mr. Datar is that 
unless suitable/appropriate amendments are made
to the Aadhaar Act, 
the orders of the Court cannot be overruled by the newly inserted Section 
139AA. 
26. On the aforesaid edifice, the argument built and developed by 
Mr. Datar is that although the power of Parliament to pass laws with 
respect to List-I and List-III is plenary, it is subject to two implied 
limitations: 
F 
(i) Parliament or any State legislature cannot pass any law that 
G 
overrules a judgment; before any law is passed which may 
result in nullifying a decision, it is mandatory to remove the 
basis of the decision. Once the basis on which the earlier 
decision/order/judgment is delivered is removed, Parliament 
can then pass a law prospectively or retrospectively and with 
H
44 
A 
B 
c 
D 
E 
F 
G 
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SUPREME COURT REl;'ORTS 
[2017] 7 S.C.R. 
or without a validation clause. 
(ii) Implied limitation not to pass contrary laws: The doctrine of 
harmonious construction applies when there is an accidental 
collision or conflict between two enactments and the Supreme 
Court has repeatedly read down one provision to give effect to 
other. Thus, both the provisions have to be given effect to. 
But ifthe collision or conflict is such that one provision cannot 
co-exist with another, then the latter provision must be struck 
down. In the present case, obtaining an Aadhaar number 
· continues to be voluntary and explii;;itly declared to be so. Once 
the Aadhaar Card is voluntary, it cannot be made mandatory 
by the ·impugned Section 139AA of the Act. As long as the 
Aadhaar enactment holds the field, there is an implied limitation 
on the power of Parliament not to pass a contrary law. 
27. He also advanced two examples of such an implied limitation: 
(i) If Parliament, by a statute, makes medical service in rural areas 
an attractive option for doctors with incentives like preference 
for post-graduate admissions, higher pay/allowances, or even 
lower tax, such a scheme is voluntary and only those doctors 
who want those benefits may opt for it. While suc,h a statute 
exists, it will not be permissible for Parliament to simultaneously 
amend the Medical C~uncil Act, 1956 and state that absence 
of rural service will be a ground to invalidate the doctor's
certific;ate of practice. Thus, what is statutorily voluntary under 
one Parliamentary Act cannot be made statutorily compulsory 
under another Parliamentary Act at the-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 a deeming provision that they 
had never applied for PAN is discriminatory when such a 
provision is not made mandatory for other assessees. 
28:Mr. Datar's next plea of violation of Article 14 was based by 
him on the application of the twin-test of classification viz. there should 
be a reasonable classification and that this classification should have 
rational nexus with the objective sought to be achieved as held in R.K. 
Dalmia v. Justice S.R. Tendolkar6. Mr. Datar conceded that first test 
6 (1959)_SCR 279
BINOY VISWAM v. UNION OF INDIA & ORS .. 
[A. K. SJKRI, J.] . 
45 
was met as individual assessees form a separate class and, to this extent, 
A 
there is a rational differentiation between individuals and other categories 
ofassessees .. ·The main brunt of his argument was on th.e second limb 
of the twin~test of classification which according to him is not satisfied 
because there is no rational nexus with the object sought to be achieved. 
29. Thifd argument of Mr. Datar was that the affected persons 
B 
by Section 139AA are individuals who are professionals like lawyers, 
doctors, architects etc: and lakhs of businessmen having small or micro 
.. enterprises. By imposing a draconian penalty of cancelling their PAN 
cards and deeming that they had nev~r applied for them, there is a direct 
infringement to Article 19(1 )(g). The consequences of not having a 
PAN card results iri a virtual "civil death" and it will be impossible to 
C 
carry out ariy business or professional activity under Rule l I 4B of the 
Income Tax Rules, 1962 (hereinafter referred to as the 'Rules'), it will 
not. be possible to operate bank accounts with transactions above 
Rs.50,0001-, use creUit/debit'cards, purchase motor-vehicles, purchase 
property etc. 
D 
30. Elaborating this point, it was submitted by him that once it is 
shown that the right under Article I, 9( I )(g) has been infringed, the burden 
shifts to the State to show that the restriction is reasonable, and in the 
interests of the
public, under Article 19(6) of the Constitution. He referred 
to Modern Dental College and Research Centre & Ors. v. State of E 
Madhya Prades/i7, wherein this Court held that the correct test to apply 
" 
'in the context of Article 19(6) was the test of proportionality: 
" ... a limitation of a.constitutional right will be constitutionally 
permissible if: (i) it is designated for a proper purpose; (ii) the 
measures undertaken to effectuate such a limitation are rationally 
F 
connected to the fulfilment of that purpose; (iii) the measures 
undertaken are necessary in that there are no alternative measures 
that may similarly achieve that same purpose with a lesser degree 
of limitation; and finally (iv) there needs to be a proper relation 
('proportionality strict sensu' or 'balancing') between the 
importance of achieving the proper purpose and the social 
G 
importance of preventing the limitation on the constitutional right." 
3 i. Mr. Datar also submitted that even if the State succeeds in 
showing a proper purpose and a rational connection with the purpose, 
1 (2016) 1 sec 353 
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46 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
A 
thereby meeting the test of Article 14, the impugned law clearly fails on· 
clauses (iii) (narrow tailoring) and (iv) (balancing) of the proportionality 
test of the above decision. He submitted that the State has failed entirely 
to show that the cancellation of PAN Cards as a consequence of not 
enrolling for Aadhaar with its accompanying draconian consequences 
B 
c 
D 
E 
F 
for the economic life of an individual is narrowly tailored to achieving its 
goal of tax compliance. It is also submitted that in accordance with the 
arguments advanced above, the State's own data shows that the problem 
of duplicate PANs was minuscule, and the gap between the tax payer 
base and the PAN Card holding population can be explained by plausible 
factors other than duplicates and forgeries. ·He questioned the wisdom 
oflegislature in compelling 99 .6% of the taxpaying citizenry to enroll for 
Aadhaar (with the further prospect of seeding) in order to weed out the 
0.4% of duplicate PAN Cards, as it fails the proportionality test entirely. 
32. On the principle of proportionality, he submitted that this principle 
was applied in the R.K. Dalmia8 case as per the following passage: 
"11 ... 
(d) that the Legislature is free to recognize degrees of harm and 
may confine its restrictions to those cases where the need is deemed 
to be the clearest; 
( e) that in order to sustain the presumption of cons.titutionality the 
court may take into
consideration matters of common knowledge, 
matters of common report, the history of the times and may assume 
every state of facts which can be conceived existing at the time 
oflegislation; ... ". 
33. Basic premise of the submissions ofMr. Shyam.Divan, learned 
senior advocate, was also the same as projected by Mr. Datar. He 
insisted that Section 139AA of the Act, which had made Aadhaar 
mandatory for income-tax assessees, is unconstitutional. However, in 
his endeavour to plead that the provision be declared unconstitutional, he 
approached the subject from an altogether different premise, giving 
G 
another perception to the whole issue. His basic submission was that 
every individual or citizen in this country had complete control over his/ 
her body and State cannot insist any person from giving his/her finger 
tips or iris of eyes, as a condition precedent to enjoy certain rights. He 
pointed out that all the petitioners in his writ petition were holding PAN 
H 
8 Footnote 6 above
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
47 
Cards and were income-tax assessees but had not enrolled under Aadhaar A 
Scheme. They were the consentions persons in the society and did not 
want to give away their finger tips or iris, being consentions objectors, 
that too, to private persons who were engaged as contractors/private 
enrollers by the Government for undertaking the job of enrolment under 
the Aadhaar. It was submitted that the data given to such persons were 
B 
not safe and there was huge possibility that the same may be leaked. 
Further, requirement of giving Aadhaar number for every transaction 
amounted to Surveillance by the State and the entire profile of such 
persons would be available to the State. He also pointed out that with 
today's technology, there was every possibility of copying the fingerprint 
and even the iris images. Various cases of fake Aadhaar Card had 
C 
come to light and even as per the Government's statement, 3.48 lakh 
bogus Aadhaar Cards were cancelled. There were instances of Aadhaar 
leak as well. Even hacking was possible. He conceded that these were 
the issues within the realm of'Right to Privacy' which were to be decided 
by the Constitution Bench. However, according to him, various orders 
D 
passed by this Court in those petitions clearly reflect that the Court had 
given the directions that Aadhaar Scheme had to be voluntarily; there 
would not be any illegal implants; and no one would suffer any
consequences ifhe does not enroll himself under the Aadhaar Scheme. 
He also submitted that even the Aadhaar Act was voluntary in nature 
which creates rights for citizens and not obligations. According to him, 
Aadhaar Act envisages free consent for getting certain benefits under 
social welfare schemes of the Government. On the other hand, Section 
139 AA of the Act is compulsory and coercive. Pointing out that if Aadhaar 
number is not mentioned in the income-tax returns, the effect provided 
under Section 139AA of the Act is that the PAN Card held by such a 
person would itself become invalid and inoperative which will lead to 
various adverse consequences inasmuch as for many other purposes as 
well, PAN Card is used. He referred to Sections 206AA, I 96J, 27 IF 
and 272B of the Act and Rule 114B of the Rules to demonstrate this. 
He also referred to the provisions of Identification of Prisoners Act, 
E 
F 
1920 which require a prisoner to give his fingerprints for record and 
G . 
submitted that making Aadhaar compulsory amounted to treating every 
person at par with a prisoner. 
34. On the aforesaid premise, Mr. Divan articulated his legal 
submissions as under: 
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48 
SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
A 
(i) Section 139AAoftheAct is contrary to the concept of'limited 
Government'. 
(ii) The impugned provision coerces the individuals to part with 
their private information which was a part of human dignity and, 
thus, the said provision was violative of Article 21 of the Constitution· 
B 
as it offended human dignity. 
c 
(iii) The impugned provision creates the involvement which can 
be used for surveillance. 
(iv) This provision converts right under Aadhaar Act to duty under 
the Income Tax Act. 
35. Elaborating on the argument predicated on the concept of 
'Limited Government', Mr. Divan submitted that the Constitution oflndia 
was the basic law or grundnorm which ensures democratic governance 
in this country. Though a sovereign country, its governance is controlled 
by the provisions of the Constitution which sets parameters within which 
D 
three wings of the State, namely, Legislature, Executive and Judiciary 
has to function. Thus, no wing of the State can breach the limitations 
provided in the Constitution which employs an array of checks and 
balances to ensure open, accountable government where each wing of 
the State performs its actions for the benefit of the people and within its 
E 
sphere of responsibility. The checks and balances are many and amongst 
them are the respective roles assigned by the Constitution to the legislature, 
the executive and the judiciary. Under India's federal structure, with a
distribution oflegislative authority between the Union government and 
the States, the fields oflegislation and corresponding executive authority · 
are also distributed between the Union' and the States. Provisions in the 
F 
Constitution such as the fundamental rights chaptef (Part III) and the 
chapter relating to inter-state trade (Part XIII) also circumscribe the 
authority of the State. These limitations on the power of the State support 
the notion of'limited government'. In this sense, the expression 'limited 
government' would mean that each wing of the State is restricted by 
G 
provisions of the Constitution and other laws and is required to operate 
within its legitimate sphere. Exceeding these limits would render the 
action of the State ultra vires the Constitution or a particular Jaw. 
H 
He further argued that the concept of'limited government' may 
also be understood in a much broader and different sense. This notion 
of a limited government is qua the citizenry as a whole. There are
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
49 
certain things that the State simply cannot do, because the action 
A 
fundamentally alters the relationship between the citizens and the State. 
The wholesale collection of biometric data including finger prints and 
storing it at a central depository per se puts the State in an extremely 
dominant position in relation to the individual citizen. Biometric data 
belongs to the concerned individual and the State cannot collect or retain 
B 
. •it to be used against the individual or to his or her prejudice in the future. 
Further the State cannot put itself in a position where it can track an 
individual and engage in surveillance. The State cannot deprive or 
withhold the enjoyment ofrights and entitlements by an individual or 
makes such entitlements conditional on a citizen parting with her 
·biometrics. Mr. Divan referred to the judgment of this Court in State of C 
Madhya Pradesh & Anr. v. Thakur Bharat Singh 9 where the concept 
oflimi ted government is highlighted in the following manner: 
"5 .... All executive action which operates to t~e prejudice of any 
person must have the authority oflaw to support it, and the terms 
of Article 358 do not detract from that rule. Article 358 expressly 
D 
authorises the State to take legislative or executive action provided 
such action was competent for the State to make or take, but for 
the provisions contained in Part III of the Constitution. Article 
358 does not
purport to invest the State with arbitrary authority to 
take action to the prejudice of citizens and others: it merely provides 
that so long as the proclamation of emergency subsists Jaws may 
be enacted, and exclusive action may be taken in pursuance of 
lawful authority, which ifthe provisions of Article 19 were operative 
would have been invalid. Our federal structure is founded on certain 
fundamental principles: (J) the sovereignty of the people with 
limited Government authority i.e. the Government must be 
conducted in accordance with the will of the majority of the people. 
The people govern themselves through their representatives, 
whereas the official agencies of the executive Government 
possess only such powers as have been conferred upon them by 
the people; (2) There is a distribution of powers between the 
three organs of the State- legislative, executive and judicial -
each organ having some check direct or indirect on the other; and 
(3) the rule of law which includes judicial review of arbitrary 
executive action. As pointed out by Dicey in his Introduction to 
'AIR 1967 SC 1170: (1967) 2 SCR 454 
E 
F 
G 
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50 
A 
B 
c 
D 
E 
F 
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SUPREME COURT REPORTS 
[2017) 7 S.C.R. 
the study of the Law of the Constitution, 10th Ecln., at p. 202, 
the expression "rule oflaw" has three meanings, or may be regarded 
from three different points of view. "It means, in the first place, 
the absolute supremacy er predominance of regular law as opposed 
to the influence of arbitrary power, and excludes the existence of 
arbitrariness, of prerogative, or even of wide discretionary authority 
on the part of the Government". At p. 188 bicey points out: . 
'"In alfh,ost every continental community the executive 
exercises far wider discretionary authority in the matter of 
arrest, of temporary imprisol)ment, of expulsion from its 
territory, and the like, than is either legally cla\med or in fact 
exerted by the Govetnment in England: and a study of European 
politics now and again reminds English readers that wherever 
there is di~retion there is room for arbitrariness, and that in a 
republic no less than under a monarchy discretionary authority 
on the part of the Government must mean insecurity for legal 
freedom on the part of its subjects." 
We have adopted under our Constitution not the continental system 
but the British system under which the rule of law prevails. Every 
Act done by the Government or by its officers must, if it is to 
operate to the prejudice of any person must, be supported by some 
legislative authority." 
36. Relying on the aforesaid observations, Mr. Divan submitted
that the recognition of the distinction between an individual or person 
and the State is the single most important factor that distinguishes a 
totalitarian State from one that respects individuals and recognizes their 
special identity ~nd entitlement to dignity. The Indian Constitution does 
not establish a totalitarian State but creates a State that is respectful of 
individual liberty and constitutionally guaranteed freedoms. The 
Constitution oflndia is not a charter of servitude. 
37. Proceeding further, another submission of Mr. Divan, as noted 
above, was that Section 139AA which coerces the in.dividuals to part 
with t~eirpersonal information was unconstitutional. He submitted that 
a citizen is ehtitled to enjoy all these rights 'including social and civil 
rights such as the right to receive an education, a scholarship, medical 
assistance, pensions. and benefits under government schemes without 
having to part with his or her personal biometrics. An individual's
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
51 
biometrics such as finger prints and iris scan are the property ~nd A 
entitlement of that individual and the State cannot co~rce an individual 
or direct him or her to part witlibiometrics as a condition for the ex'ercise 
of rigb.ts or the enjoyment of entitlements. Every citizen has a basic 
right to informational self-determinatioI) and the state cannot exercise 
dominion over a citizen's proprietary information either in individual cases 
or collectively so as to place itself in a position where it can aggregate 
information and create detailed profiles of individuals or facilitate this 
process. The Constitution of India is not a charter for a Police State 
which permits the State to maintain cradle to grave records of the 
citizenry. No democratic country in the world has devised a system 
similar to Aadhaar which operates like an electronic leash to tether every 
citizen from cradle t-0 grave. There can be no question of free consent 
in situations where an individual is being coerced to part with its biometric 
information (a) to be eligible for welfare schemes of the State; and/or 
B 
c 
(b) under the threat of penal consequences. In other words, the State 
cannot compel a person to part with biometrics as a condition precedent 
D 
for discharge of the State's constitutional and statutory obligations. In 
· support of his submission that there cannot be coercive measures on the 
parf<.if the Government
to part with such information ·and it has to be 
voluntary and based on informed consent, Mr. Divan refered to the 
followingjudgments: 
(i) National Legal Services Authority v. Union of India & Ors. '0 
'.'75. Article 21, as already indicated, guarantees the protection 
of"personal autonomy" ofan individual. In Anuj Garg v. Hotel 
Assn. of India [(2008) 3 SCC l] (SCC p. 15, paras 34-35), 
this Court h.eld that personal autonomy i'ncludes both the 
negative right of not to be subject to interference by others 
and the. positive right of individuals to make decisions about 
their life, to express themselves and to choose wb.ich activities 
tp take part in. Self-de.terminati~n of.gender is art integral part 
E 
F 
of personal autonomy and self-expressiop and falls within the 
realm of petsonal liberty guaranteed uncler Article 21 of the. G 
Constitutio~ otindia." 
· 
(ii) Suni/ Batra &°Anr. v, Delhi Administration & Ors. 11 
'° (2014·) s sec 438 
11 (1978) 4 sec 494 
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52 
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SUPREME COURT REPORTS 
[2017] 7 S.C.R. 
"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 the quality oflife covered by Article 21: 
"Something more than mere animal existence. The inhibition 
against its deprivation extends to all those limbs and faculties 
by which life is enjoyed. The provision equally prohibits the 
mutilation of the body by the amputation of an arm or leg, or 
the putting out of an eye or the destruction of any other 
organ of the body through which the soul communicates with 
the outer world." 
A 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 the law on the point. He submitted that in general 
in common law it is the right of every individual to have the 
control of his own person free from all restraints or interferences 
of others. Every human being of adult years and sound mind 
has a right to determine what shall be done with his own body. 
In the case of medical treatment, for example, a surgeon who 
performs an operation without the patient's consent commits 
assault or battery. It follows as a corollary that the patient 
possesses the right not to consent i.e. to refuse treatment. (In
the United States this right is reinforced by a constitutional 
right of privacy). This is known as the principle ot self-
determination or informed consent. Mr Andhyarujina submitted 
that the principle of self-determination applies when a patient 
of sound mind requires that life support should be discontinued. 
The same principle applies where a patient's consent has been 
expressed at an earlier date before he became unconscious or 
otherwise incapabre of communicating it as by a "living will" 
or by giving written authority to doctors in anticipation of his 
incompetent situation. 
xxx 
xxx 
xxx 
12 (2011) 4 sec 454
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
53 
93. Rehnquist, C.J. noted that in law even touching of one 
A 
person by another without consent and without legal justification 
was a battery, and hence illegal. The notion of bodily integrity 
has been embodied in the requirement that informed consent 
is generally required for medical treatment. As observed by 
Cardozo, J. while on the Court of Appeals of New York: 
"Every human being of adult years and sound mind has a 
right to determine what shall be done with his own body, and 
a surgeon who performs an operation without his patient's 
consent commits an assault, for which he is liable in 
damages." 
"Vide Schloendorff v. Society of New York Hospital [211 
B 
c 
NY 125: 105NE92(1914)], NY at pp. 129-30, NEatp. 93. 
Thus the informed consent doctrine hl),s become firmly 
entrenched in American Tort Law. The logical corollary of the 
doctrine of informed consent is that the patient generally 
possesses the right not to consent, that is, to refuse treatment." D 
38. He, thus, submitted that the right to life covers and extends to 
a person's right to protect his or her body and identity from harm. The 
right to life extends to allowing a person to preserve and protect his or 
her finger prints and iris scan. The strongest and most secure manner 
of a person protecting this facet of his or her bodily integrity and identity 
E 
is to retain and not part with finger prints/iris scan. He argued that the 
right to
life under Article 21 permits every person to live life to the fullest 
and to enjoy freedoms guaranteed as fundamental rights, constitutional 
rights, statutory rights and common law rights. He also argued that the 
constitutional validity of a statutory provision must be judged by assessing 
F 
the effect the impugned provision has on fundamental rights. The effect 
of the impugned provision is to coerce persons into parting with their 
finger prints and iris scan and lodging these personal and intimate aspects 
of an individual's identity with the State as part of a programme that is in 
the petitioner's view wholly illegitimate and the validity of which is pending 
before the Constitution Bench. 
G 
39. Expressing his grave fear and misuse of personal information 
parted with by the citizenry in the form of biometrics i.e. finger prints 
and iris scan, Mr. Divan made a passionate plea that requirement of 
enrollment for Aadhaar is designed to facilitate and encourage priva.!e 
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sector operators to create applications that depend upon the Aadhaar 
data base for the purposes of authentication/verification. This would 
mean that non-governmental, private sector entities such as .banks, 
employers, any point of payment, taxi ~ervices, airlines, colleges, schools, 
movie theatres, clubs, service providers, travel companies, etc. will all 
utilise the Aadhaar data base and may also insist upon an Aadhaar nllmber 
or Aadhaar authentication. This would mean that at every stage in an 
individual's daily activity his or her presence could be traced to a location 
in real time. One of the purposes of Aadhaar as projected by the 
respondents is that it will be a single point verification for KYC (Know 
Your Customer). This is permissible and indeed contemplated by the 
impugned Act. Given the very poor quality of scrutiny of documents by 
private enrollers and enrollment agencies (without any governmental 
supervision) means that the more rigorous KYC process at present being 
employed by banks and other financial institutions will yield to a system 
which depends on a much weaker data base. This would eventually 
imperil the integrity of the financial system and also threaten the economic 
sovereignty of the nation. According to him, Aadhaar Act does not 
serve as an identity as incorrectly projected by the respondents but serves 
as a method of identification. Every citizen-state and citizen-service
provider interaction requiring identification is sought to be captured and 
retained by the government at a central base and a whole ecology 
developed that would require reference to this central data base on 
multiple occasions in course of the day. He argued that this exercise of 
enrollment impermissibly creates the foundation for real time, continuous 
and pervasive identification of citizens in breach of the freedoms 
guaranteed under the Constitution. 
F 
40. Another submission ofMr. Divan was that object behind Section 
l 39AA of the Act was clearly discriminatory inasmuch as it creates two 
classes: one class of those persons who volunteer to enrol themselves 
under Aadhaar Scheme and provide the particulars in their income-tax 
returns and second category of those who refuse to do so. This provision 
by laying down adverse consequences for those who do not enrol 
G 
becomes discriminatory qua that class and, therefore, is violative of 
Article 14 of the Constitution. Another limb of his submission was that 
it also creates an artificial class of those who object to such a provision 
of enrollment under Aadhaar. According to him, this would be violative 
ofequalityclause enshrined inArticle 14 of the Constitution and in support 
H
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
55 
of this submission, he relied upon the judgment of this Court in Nagpur 
A 
Improvement Trust&: Anr. v. Vitflal Rao & Ors.13. Paras 21, 22 and 
2.6 reads as under: 
"21. The first point which was raised was: whether it is the State 
which is the acquiring authority or it is the Improvement Trust 
which is the acquiring authority, under the Improvement Act. It B 
seems to us that it is quite clear, especially in view of Section 17-
A as inserted by para 6 of the Schedule, that the acquisition will 
be by the Government and it is only on payment of the cost of 
acquisition to the Government that the lands vest in the Trust. It is 
true that the acquisition is for the Trust and may be at its instance, 
but nevertheless the acquisition is by the Government. 
22. If this is so, then it is quite clear that the Government can 
acquire for a housing accommodation scheme either under the 
Land Acquisition Act or under the Improvement Act. If this is so, 
it enables the State Government to discriminate between one 
owner equally situated from another owner. 
xxx 
xxx 
xxx 
c 
D 
26. It is now well-settled that the State can make a reasonable 
classification forthe purpose oflegislation. It is equally well-settled 
that the classification in order to be reasonable must satisfy two 
E 
tests: (i) the classification must be founded on intelligible differentia 
and (ii) the differentia must have a rational relation with the
object 
sought to be achieved by the legislation in question. In this 
connection it must be borne in mind that the object itself should be 
lawful. The object itself cannot be discriminatory, for otherwise, 
for instance, ifthe object is to discriminate against one section of F 
the minority the discrimination cannot be justified on the ground 
that there is a reasonable classification because it has rational 
relation to the object sought to be achieved . 
. 41. He also relied upon the judgment in the case of Subramanian 
Swamy v. Director, Central Bureau of Investigation & Anr. 14• Paras 
G 
58 and 59reads as under: 
"58. The Constitution permits the State to determine, by the process 
of classification, what should be regarded as a class for purposes 
" (1973) 1 sec soo 
"(2014) s sec 682 
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oflegislation and in relation to law enacted on a particular subject. 
There is bound to be some degree of inequality when there is 
segregation of one class from the other. However, such segregation 
must be rational and not artificial or evasive. In other words, the 
classification must not only be based on some qualities or 
characteristics, which are to be found in all persons grouped 
together and not in others who are left out but those qualities or 
characteristics must have a reasonable relation to the object of 
the legislation. Differentia which is the basis of classification must 
be sound and must have reasonable relation to the object of the 
legislation. If the object itselfis discriminatory, then explanation 
that classification is reasonabldhaving rational relation to the object 
sought to be ac::ieved is immaterial. 
59. It seems to us that classification which is made in Section 6-
A on the basis of status in government service is not permissible 
under Article 14 as it defeats the purpose of finding prima facie 
truth into the allegations of graft, which amount to an offence 
under the PC Act, 1988. Can there be sound differentiation 
between corrupt public servants based on their status? Surely 
not, because irrespective of their status or position, corrupt public 
servants are corrupters of public power. The con'upt public 
servants, whether high or low, are birds of the same feather and 
must
be confronted with the process of investigation and inquiry 
equally. Based on the position or status in service, no distinction 
can be made between public servants against whom there are 
allegations amounting to an offence under the PC Act, 1988." 
42. In fine, submission of"Mr. Divan was that save and except by 
"reading down", section I 39AA is unworkable. This is because Aadhaar 
by its very design and by its statute is "voluntary" and creates a right in 
favour of a resident without imposing any duty. There is no compulsion 
under the Aadhaar Act to enroll or obtain a number. If a person chooses 
not to enroll, at the highest, in terms of the Aadhaar Act, he or she may 
G be denied access to certain benefits and services funded through the 
Consolidated Fund oflndia. When the Aadhaar enrollment procedure is 
supposedly based on informed free consent and is voluntary a person 
_cannot be compelled by another law to waive free consent so as to alter 
the voluntary nature of enrollment that is engrafted in the parent statute. 
H 
The right of a resident under the parent Act cannot be converted into a
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRl, J.] 
57 
duty so long as the provisions of the Aadhaar Act cannot be converted A 
into a duty so long as the provisions of the Aadhaar Act remain as they 
are. Argument was that Section 139 AA be read down to hold that it is 
only voluntary provision by taking out the sting of mandatoriness contained 
therein and there is no compulsion on any person to give Aadhaar number. 
43. We may mention at this ~tag,"..ttselfthat on conclusion of his 
argumeQ.ts, Mr. Divan was put a ·specific query that most of the arguments 
presented by him endeavoured to project aesthetics of law and 
jurisprudel).Ce which had tM shades (Jf •.Right to Privacy' jurisprudence 
which could not be gone into by this Bench as this very aspect was 
already referred ~ the Constitution Bench. Mr. Divan was candid in 
accepting this fact and his submission was that in thes~ circumstances, 
the option for this Bench was to stay the operation of proviso to sub-
section (2) of Section 139AA of the Act till the decision is rendered by 
the Constitution Bench. 
B 
c 
44. Mr. Salman Khurshid, learned senior counsel who appeared 
in Writ Petition (Civil) No. 247of2017, while adopting the arguments of D 
Mr. Datar and Mr. Divan, made an additional submission, invoking the 
principle of right to live with dignity which, according to him, was 
somewhat different from the Right to Privacy. He submitted that although 
dignity inevitably includes privacy, the former has
several other 
dimensions which need to be explored as well. In his submissions, the 
E 
test to identify whether certain data collected about individuals is intrusive 
or merely expansive is to consider whether it causes embarrassment, 
indignity or invasion of privacy. Thus, the concept of dignity is quite 
distinct from that of privacy. Privacy is a conditional concept. One has 
it only to the extent that one's circumstances allow for it, as a matter of 
fact and law. While it is widely accepted that a situation may occur 
F 
where a person may not have any Right to Privacy whatsoever, dignity 
is an inherent possession of every person, regardless of circumstance. 
In that sense, Dignity is an inherent dimension of equality, the basis of 
John Rawls 'Theory ofJustice'. The Social Contract theory propounded 
by Rousseau remains the ground on which John Rawls developed the 
G 
model of the Original Position in w~ich the contours of the compact are 
conceived. Anything that reduces the personality of the participant, such 
as diluting the human element and substituting it with a number or biometric 
data, virtually destroys the model.. Dignity is an immutable value, held in 
equal measure at all times by all people, a quality privacy does not share. 
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A 
No court has ever held that a person can be stripped entirely ofhir/her 
dignity. The concept of dignity is deeper than that of privacy and its 
boundaries do not depend upon the circumstance of any individual and 
thus the State cannot legitimately fully infringe upon it. He pointed out 
that in M. Nagaraj & Ors. v. Union of India & Ors. 15 , this Court has, 
B 
c 
D 
E 
thus, elucidated the concept of Right to Dignity in the following manner: 
"20 .... This Court has in numerous cases deduced fundamental 
features which are not specifically mentioned in Part Ill on the 
principle that certain unarticulated rights are implicit in the 
enumerated guarantees. 
xxx ' 
xxx 
xxx 
26. It is the duty of the State not only to protect the human dignity 
but to facilitate it by taking positive steps in that direction. No 
exact definition of human dignity exists. It refers to the intrinsic 
value of every human being, which is to be respected. It cannot 
be taken away. It cannot give (sic be given). It simply is. Every 
human being has dignity by virtue of his existence. The 
constitutional courts in Germany, therefore, see human dignity as 
a fundamental principle within the system of the basic rights. This 
is how the doctrine of basic structure stands evolved under. the 
German Constitution and by interpretation given to the concept 
by the constitutional courts." 
45. After explaining the aforesaid distinction be~een the two
concepts, Mr. Khurshid argued that the impugned provision in the Income 
Tax Act was violative of right to live with dignitY guaranteed under Article 
21 of the Constitution. He submitted that Right to Life and Liberty . 
F 
mentioned in Article 21 of the Constitution encompasses within its right 
to live with dignity as has been held in catena of cases by this Court. He 
explained in detail as to how the concept of dignity was dealt with by 
different jurists from time to time including Kant who identified dignity 
with autonomy and Dworkin who exemplified the doctrine of dignity on 
G 
the conception of living well, which itself is based on two principles of 
dignity, namely, selfrespect and authenticity.. In this sense, he submitted 
that living with dignity involves giving importance to living our life well 
and acting independently from the personal sense of character and 
commitment to standards and ideals we stand for. The mandatory. 
H 
"(2006) s sec 212
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
59 
requirement of Aadhaar card makes an unwarranted intrusion in the 
A 
iJUportance we give to our bodily integrity in living our life well and compels 
human beings 'tci express themselves the way the State wants. He also 
submitted that the features relevant for upholding the dignity of a human 
being will be severely compromised with when the data are cross-
referenced with data relating to other spheres of life and are disclosed 
B 
to third parties through different data collected for varied reasons. This 
would take place without the knowledge and consent of the poor 
assessees who are apparently required to mandatory obtain the Aadhaar 
card only for the plirposes of payment of taxes. 
46. Mr. Khurshid also raised doubts and fears about the 
unauthorised disclosure of the information given by these persons who 
C 
e11roll themselves under Aadhaar and submitted that in the absence of 
proper mech~nism in place to check unauthorised disclosure, the impugned 
provision of makingAadhaar card for filing tax returns cannot be said to 
be consistent with the democratic ideals. Mr. Khurshid also submitted 
that there was no compelling state interests in having such a provision 
D 
introducing compulsive element and depriving from erstwhile voluntary 
nature of Aadhaar scheme. According to him, the 'proportionality of 
means' concept is an essential one since integrating data beyond what is 
really necessary for the
stated purpose is clearly unconstitutional. He 
submitted that in light of the decision in the case of Gobind v. State of 
Madhya Pradesh 16, which has been the position of this Court since the 
E 
past forty-two years and has been cited with approval often, it is humbly 
submitted that the State has the onerous burden of justifying the impugned 
mandatory provision. The 'compelling state interest' justification is only 
one aspect of the broader 'strict scrutiny' test, which was applied by this 
Court in Anuj Garg v. Hotel Association of India17• The other essential 
facet is to demonstrate 'narrow tailoring', i.e., that the State must 
demonstrate that even if a compelling interest exists, it has adopted a 
method that will infringe in the narrowest possible manner upon individual 
rights. He submitted that neither is there any compelling State interest 
warranting such a harsh mandatory provision, nor has it been narrowly 
tailored to meet the object, if any. 
47. In this hue, he also submitted that Section I 39AA of the Act 
violates the Rule of Law. Elaborating his argument, he submitted th11t a 
legal system which in general observes the rule oflaw treats its people 
"(1975) 2 sec 148 
11 (2008) 3 sec 1 
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as persons, in the sense that it attempts to guide their behaviour through 
affecting the circumstances of their action. lt, thus, presupposes that 
they are rational autonomous creatures and attempts to affect their actions 
and habits by affecting their deliberations. It satisfies men's craving for 
reasonable certainty of form as well as substance,· and for dignity of 
process as well as dignity ofresult. On the other hand, when the rule of 
law is violated, it maybe either in the form of leading to uncertainty or it 
may lead to frustrated and disappointed expectations. · It leads t9 the 
first when the law does not enable people to foresee future developments 
or to form definite expectations. It leads to frustrated expectations when 
the appearance of stab.ility and certainty which encourages people to 
rely and plan on the basis of the existing law is shattered by retroactive 
law-making or by preventing proper law-enforcement, etc. The evils of 
frustrated expectations are greater. Quite apart from the concrete harm 
they cause they also offend dignity in expressing disrespect for people's 
autonomy. The law in such cases encourages autonomous action only 
in order to frustrate its purpose. When such frustration is the result of 
human action or the result of the activities of social institutions then it 
expresses disrespect. Often it is analogous to entrapment: one is 
encouraged innocently t<J rely on
the law and then that assurance is 
withdrawn and one's very reliance is turned into a cause of harm to one. 
Just as in the instant case, the impugned provision came into force when 
the order of the Court that Aadhaar card is not mandatory, still continues 
to operate. 
48. In the alternative, another submission of Mr. Khurshid was . 
that Section 139AA was retrospective in nature as per proviso to sub-
section (2) thereof. As per the said proviso, on failure to give Aadhaar 
F 
number, the consequence was not only to render the PAN Card invalid 
prospectively but from the initial date of issuance of PAN Card in view 
of the expression 'as ifthe person had not applied for Permanent Account 
Number' which would meant that PAN Card would be invalidated by 
rendering the same void ab initio i.e. from retrospective effect. Such 
a retrospective effect, according to him, was violative of Article 20(1) of 
G 
the Constitution. Further, retrospective operation is not permissible without 
separate objects for such operations as held in Dayawati v. Inderjit18• 
In conclusion, learned senior counsel submitted that the law regarding 
mandatory requirement of Aadhaar card is a hasty piece of legislation 
"(1966) 3 SCR 275 
H
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
61 
without much thought going into it. It is submitted that the Aadhaar card 
A 
cannot be made mandatory for filing tax returns with such far-reaching 
consequences for non-compliance, unless and until suitable measures 
are put in place to ensure that the dignity of the assessees is not 
compromised with. The generalisation, centralisation and disclosure of 
biometric information, however, accidental it might be, has to be 
effectively controlled andJnechani&JnS have to be put in place to inquire 
and penalise those found g\lijty 6f~i~<i!i!sfllg such information. The need 
to do so is extremely crucial ·iri vi'ew of the fact that biometric systems 
may be bypassed, hacked, or even fail. Unless the same is done, the 
identity of the citizens will be reduced to a collection of instrumentalised 
markers. Further, the organisations and authorities allowed to conduct it 
should be strictly defined .. There has to be a strict control over any 
systematic use of common identifiers. No such re-grouping of data can 
be allowed as coqld lead to the use of biometrics for exclusion of 
vulnerable groups. Brown considers surveillance as both a discursive 
B 
c 
and a material practice that reifies bodies around divisive lines. 
D 
Surveillance of certain communities has been both social as well as 
political norm. He further submitted that this Court cannot lose sight of 
the fact that the data collected under the impugned
provision may be 
used to carry out discriminatory research and sort subjects into groups 
for specific reasons. The fact that the impugned provision creates an 
~pprehension in the minds of the people, legitimate and reasonable enough 
E 
with no preventive mechanism in place, is in itself a violation of the right 
to life and personal liberty as enshrined under the Constitution. 
49. Mr, Anando Mukherjee, learned counsel, appeared in Writ 
Petition (Civil) No. 304 of 2017, while reiterating the.submissions of 
earlier counsel, argued that Section 139AA was confused, self-destructive 
F 
and self-defeating provision for the reason that on the one hand, it had 
an effect of making enrollment into Aadhaar mandatory, but, on the other 
hand, by virtue of the explanation contained in the provision itself, it is 
kept voluntary and as a matter of right for the same set of individuals 
and for the purposes of Section 139AA. He also submitted that there 
was a conflict between Section 139AA of the Act and Section 29 of G 
Aadhaar Act inasmuch as Section 29 puts a blanket embargo on using 
the core biometric information, collected or created under the Aadhaar 
Act for any purpose other than generation of Aadhaar numbers and 
authentication under the Aadhaar Act. Mr. Mukherjee went to the extent 
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A 
of describing the impugned provision as colourable exercise of power 
primarily on the ground that when Aadhaar Act is voluiltary in nature, 
there was no question of making this very provision mandatory by virtue 
of Section 139AA of the Act. 
50. Appearing for Union of India, Mr. Mukul Rohatgi, learned 
B 
Attorney General for India; put stiff resistance to the submissions 
advanced on behalf of the petitioners. In a bid to torpedo and pulverise 
the arguments as set forth on the side of t~e petitioners, the learned 
Attorneypyramid his arguments in the following style: 
In the first, Mr. Rohatgi made few preliminary remarks: First 
c 
such submission was that. many contentions advanced by the counsel 
for the petitioners touch upon the question of Right to Privacy which had 
already been referred to the Constitution Bench and, th~refore, those 
aspects were not required to be dealt with. In this behalf, he specifically 
referred to the following observations of this Court in its order dated 
August 11, 2015, which were made by the three Judge Bench in Writ 
D 
Petition (Civil) No. 494of2012: 
E 
F 
"At the same time, we are also of the opinion that the institutional 
integrity and judicial discipline reguire that pronouncement made 
by larger Benches of this Court cannot be ignored by the smaller 
Benches without appropriately explaining the reasons for not 
following the pronouncements made by such larger Benches. With 
due
respect to all the learned Judges who rendered the subsequent 
judgments - where right to privacy is asserted or referred to their 
Lordships concern for the liberty of human beings, we are of the 
humble opinion that there appears to be certain amount of apparent 
unresolved contradiction in the law declared by this Court." 
Notwithstanding these preliminary remarks, he rebutted the said 
argument based on Article 21, including Right to Privacy, by raising a 
plea that Right to Privacy/Personal Autonomy/Bodily Integrity is not 
absolute. He referred to the judgment of the United States Supreme 
G 
Court in Roe v. Wade 19 wherein it was held: 
H 
"The privacy right involved, therefore, cannot be said to be 
absolute. In fact, it is not clear to us that the claim assi:rted by 
some amici that one has an unlimited right to do with one's body 
as one pleases bears a close relationship to the right of privacy 
19410 U.S. 113 (1973)
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
63 
previously articulated in the Court's decisions. The Court has 
A 
refused. to recognise an unlimited right of this kind in the past." 
He also relied upon the judgment of this Court in Sharda v. 
DharmpaP.0 where the Court held that a matrimonial court has the power 
to order a person to undergo medical test. Passing of such an order by 
the court would not be in violation of the right to personal liberty under 
B 
Article 21 of the Indian Constitution. 
51. His second preliminary submission was that insofar as 
challenge to the validity of Section 139AA on other grounds is concerned, 
it is to be kept in mind that the constitutional validity of a statute could be 
chailenged only on two grounds, i.e. the Legislature enacting the law c 
was not competent to enact that particular law or such a law is violative 
of any of the provisions of the Constitution. In support, he referred to 
the various judgments of this Court. 
52. He, thus, submitted that no third ground was available to any 
of the petitioners to challenge the constitutional validity ofa legislative 
D 
enactment. According to him, the principle proportionality should not be 
read into Article 14 of the Constitution, while taking support from the 
judgment in K.T. Plantation Private Limited & Anr. v. State of 
Karnataka21 , wherein it is held that plea of unreasonableness, 
arbitrariness, proportionality, etc. always raises an element of subjectivity
on which a court cannot strike down a statute or a statutory provision. 
E 
53. Third introductory submission of the learned Attorney General 
was that the scope of judicial review in a fiscal statute was very limited 
and Section 139AA of the Act, being a part of fiscal statute, following 
parameters laid down in State of Madhya Pradesh v. Rakesh Kohli & · 
Anr.22 had to be kept in mind: 
F 
"32. While dealing with constitutional validity of a taxation law 
enacted by Parliament or State Legislature, the court must have 
regard to the following principles: 
(i) there is always presumption in favour of constitutionality of a 
G 
law made by Parliament or a State Legislature, 
(ii) no enactment ·can be struck down by just saying that it is 
20 c2oos) 4 sec 493 
21 c2011)4 sec 414 · 
22 c2012) 6 sec 312 
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arbitrary or unreas_onable or irrational but some constitutional 
infirmity has to be found, 
(iii) the court is not concerned with the wisdom or unwisdom, the 
justice or injustice of the law as Parliament and State Legislatures 
are supposed to be alive to the needs of the people whom they 
B 
represent and they are the best judge of the community by whose 
suffrage they come into existence, 
c 
(iv) hardship is not relevant in pronouncing on the.constitutional 
validity of a fiscal statute or economic law, and 
(v) in the field of taxation, the legislature enjoys greater latitude 
for classification ... ". 
54. In this hue, he also argued that the State enjoys the widest 
. latitude where measure of ec~:momic regulations are concerned {See -
Secretary to Government of Madras & Anr. v. P.R. Sriramu/u & 
Anr. 23, paragraph 15) and that ma/a jides cannot be attributed to the 
D 
Parliament, as held in G C. Kanungo v. State of Orissa24, (paragraph 
11 ). Also, the courts approached the issue with the presumption of 
constitutionality in mind and that Legislature intends and correctly 
appreciates the need of its own people, as held in Mohd. HanifQuareshi 
& Ors. v. State of Bihar25 (paragraph 15). 
E 
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55. On merits, the argument of Mr. Rohatgi was that once the 
aforesaid basic parameters are kept in mind, the impugned provision 
passes the muster of constitutionality. Ad".erting to the issue oflegislative 
competence, he
referred to Article 246 and 248 of the Constitution as 
well as Entry 82 and Entry 97 ofList-I of Schedule-VII of the Constitution 
which empowers the Parliament to legislate on the subject pertaining to 
income-tax. Therefore, it could not be said that the impugned provision 
made was beyond the competence of the Parliament. He also submitted 
that in any case residuary power lies with the Parliament and this power 
to legislate is plenary, as held in Synthetics and Chemicals Ltd. & 
Ors. v. State of U.P. & Ors. 26 
"56. On behalf of the State both Mr. Trivedi and Mr. Yogeshwar 
Prasad contended that regulatory power of the State was there 
" < 1996) 1 sec 345 
" (I 995) 5 sec 96 
"AIR 1958 SC 731 
H 
"(1990) 1 sec 109
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
65 
and in order to regulate it was possible to impose certain A 
disincentives in the form of fees or levies. Imposition of these 
imposts as part of regulatory process is permissible, it was 
submitted. Our attention was drawn to the various decisions where 
by virtue of "police power" in respect of alcohol the State has 
imposed such impositions. Though one would not be justified in 
adverting to any police power, it is possible to conceive sovereign 
power and on that sovereign power to have the power of regulation 
to impose such conditions so as to enstit,ffhatJ~e t{;gulations are 
obeyed and complied with. We would.riot °like, howi;ver, to embark 
upon any theory of police power because the Indian Constitution 
does not recognise police power as such. But we must recognise 
the exercise of sovereign power which gives the States sufficient 
authority to enact any law subject to the limitations of the 
Constitution to discharge its functions. Hence, the Indian 
Constitution as a sovereign State has power to legislate on all 
branches except to the limitation as to the division of powers 
between the Centre and the States and also subject to the 
fundamental rights guaranteed under the Constitution. The Indian 
State, between the Centre and the States, has sovereign power. 
The sovereign power is plenary and inherent in every sovereign 
State to do all things which promote the health, peace, morals, 
education and
good order of the people. Sovereignty is difficult to 
define. This power of sovereignty is, however, subject to 
constitutional limitations. This power, according to some 
constitutional authorities, is to the public what necessity is to the 
individual. Right to tax or levy imposts must be in accordance 
with the provisions of the Constitution." 
56. Rebutting the argument of Mr. Datar that by making the 
impugned provision mandatory the Legislature had acted contrary to the 
judgments of thi:> Court, Mr. Rohatgi argued that this argument was 
devoid of any merit on various counts: First, there was no judgment of 
this Court and the orders referred were only interim orders. Secondly, 
in any case, those orders were passed at a time when Aadhaar was 
being implemented as a scheme in administrative/executive domain and 
the Court was considering the validity of Aadhaar scheme in that hue/ 
background. Those orders have not been passed in the context of 
examining the validity of any legislative meas~re. Thirdly, no final view 
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is taken in the form of any judgment that Aadhaar is unconstitutional 
and, therefore, there is no basis in existence which was required to be 
removed. Fourthly, the Parliament was competent to pass the law and 
provide statutory framework to give legislative backing to Aadhaar in 
the absence of any such law which existed at that time. He, thus, 
B 
submitted that there was no question of curing the alleged basis of 
judgment/interim orders by legislation. He .specifically relied upon the 
following passage from the judgment in the case of Goa Foundation & 
Anr. y. State of Goa'& Anr.27 : 
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"24. The principles on which first question would require to be 
answered are not in doubt. The power to invalidate a legislative 
or executive act lies with the Court. A judicial pronouncement, 
either declaratory or conferring rights on the citizens cannot be 
set at naught by a subsequent legislative act for that would amount 
to an encroachment on the judicial powers. However, the 
legislature would be competent to pass an amending or a validating 
act, if deemed fit, with retrospective effect removing the basis of 
the decision of the Court. Even in such a situation the courts may 
not approve a retrospective deprivation of accrued rights arising 
from a judgment by means of a subsequent legislation (Madan 
Mohan Pathak v. Union of India). However, where the Court's 
judgment is purely declaratory, the courts will lean
in support of 
the legislative power to remove the basis of a court judgment 
even retrospectively, paving the way for a restoration of the status 
quo ante. Though the consequence may appear to be an exercise 
to overcome the judicial pronouncement it is so only'at first blush; 
a closer scrutiny would confer legitimacy on such an exercise as 
the same is a normal adjunct of the legislative power. The whole 
exercise is one of viewing the different spheres of jurisdiction 
exercised by the two bodies i.e. the judiciary and the legislature. 
The balancing act, delicate as it is, to the constitutional scheme is 
guided by the well-defined values. which have found succinct 
manifestation in the views of this Court in Bakhtawar Trust." 
57. Mr. Rohatgi thereafter read extensively from the counter 
affidavit filed on behalf of the Union oflndia detailing the rational and 
objective behind introduction of Section 139AA of the Act. He submitted 
that the provision aims to achieve, inter alia, the following objectives: 
21 (20 J 6) 6 sec 602 
'1
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
67 
(i) This provision was introduced to tackle the problem of multiple A 
PAN cards to same individuals and PAN cards in the name of 
fictitious individuals are common medium of money laundering, 
tax evasion, creation and channelling of black money. PAN 
numbers in name of firm or fictitious persons as directors or 
shareholders are used to create layers of shell companies 
B 
through which the aforesaid activities are done. A de-duplication 
exercise was done in the year 2006 and a large number of 
PAN numbers were found to be duplicate. The problem of 
some persons fraudulently obtaining multiple PANs and using 
them for making illegal transactions still exists. Over all 11.35 
lakh cases of duplicate PAN/fraudulent PAN have been 
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detected and accordingly such PANs have been deleted/ 
deactivated. Out of this, around 10.52 lakh cases pertain to 
individual assessees. Total number of Aadhaar for individuals 
exceeds 113 crores whereas total number of PAN for 
individuals is around 29 crore. Therefore, whereas the Aadhaar D 
Act applies to the entire population, the Income Tax Act applies 
to a much smaller sub-set of the population, i.e. the tax payers. 
In order to ensure One Pan to One Person, Aadhaar can be 
the sole criterion for allotment of PAN to individuals only after 
all existing PAN are seeded with Aadhaar and quoting of 
Aadhaar is mandated for new PAN applications. 
E 
Counter affidavit filed by the
Union of India also gives the following 
instances of misuse of PAN: 
(a) In NSDL scame of2006, about one lakh bogus bank and demat 
accounts were opened through use of PANs. The real PAN 
owners were not aware of these accounts. 
(b) As Banks progressively started insisting on PANs for opening 
. of bank accouqts, unscrupulous operators managed multiple 
PANs for providing entries and operating undisclosed accounts 
for making financial transactions. 
(c)Entry operators manage a large number of shell companies 
using duplicate PANs or PANs issued in the name of dummy 
directors and name lenders. As the persons involved as bogus 
directors are usually the same set of persons, linkage with 
Aadhaar would prevent such misuse. Further, it will also be 
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expedient for the Enforcement agencies to identify and red 
flag such misuses in future. 
(d)Cases have also been found where multiple PANs are acquired 
by a single entity by dubious means and used for raising loans 
from different banks. In one such case at Ludhiana, multiple 
PANs were found acquired by a person in his individual name 
as well as in the name of his firms by dubious means. During 
investigation, he admitted to have acquired multiple PANs for 
raising multiple loans from banks and to avoid adverse CIBIL 
information. Prosecution has been launched by the Income 
Tax Department in this case u/s 277 A, 278, 278B of the Act in 
addition 
(ii) To tackle the problem of black money, Mr. Rohatgi pointed out 
that the Second Report of the Special Investigation Team (SIT) 
on black money, headed by Justice M.B. Shah (Retd.), after 
observing the menace of corruption and black money, 
recommended as follows: 
"At present, for entering into financial/business transactions, 
persons have option to quote their PAN or UID or passport 
number or driving license or any other proof of identity. 
However, there is no mechanism/system at present to connect 
the data available with each of these independent proofs of 
ID. It is suggested that these databases be interconnected. 
This would assist in identifying multiple transactions by one 
person with different IDs." 
The SIT in its Third Report has recommended
the establishment 
of a Central KYC Registry. The rational for the SIT 
recommendations was to prove a verifiable and authenticable 
identity for all individuals and Aadhaar provides a mechanism to 
serve that purpose in a federated architecture without aggregating 
all the information at one place. 
The Committee headed by the Chairman, CBDT on 'Measures 
to tackle black money in India and abroad' reveals that various 
authorities are dealing with the menace of money laundering being 
done to evade taxes under the garb of shell companies by the 
persons who hold multiple bogus PAN numbers under different 
names or variations of their names, providing accommodation
BINOY VISWAM v. UNION OF INDIA & ORS. 
(A. K. SIKRI, J.] 
69 
entries to various companies and persons to evade taxes and 
A 
introduce undisclosed and unaccounted income of those persons 
into their companies as share applications or loans and advances 
or booking fake expenses. These are tax frauds and devices 
which are causing loss to the revenue to the tune of thousands of 
crores. 
(iii) Another objective is to curb the menace of shell companies. 
It is submitted in this regard that PAN is a basis of all the 
requirements in the process of incorporation of a company. 
Even an artificial juridical person like a company is granted 
PAN. It is required as an ID proof for incorporation of a 
company, applying for DIN, digital signature etc. PAN is also 
required for opening a bank account in the name of a company 
or individuals. Basic documents required for obtaining a PAN 
are ID proof and address proof. It has been observed that 
these documents which are a basis of issuance of PAN could 
easily be forged and, therefore, PAN cards issued on the basis 
of such forged documents cannot be genuine and it can be 
used for various financial frauds/crime. Aadhaar will ensure 
that there is no duplication of identity as biometric will not allow 
that. If at the time of opening of bank accounts itself, the 
more robust identity prooflike Aadhaar had been used in place 
of PAN, the menace of mushrooming of non-descript/shell/ 
jamakharchi/bogus companies would have been
prevented. 
There is involvement of natural person in the complex we~ of 
shell companies only at the initial stage when the shareholders 
subscribe to the share capital of the shell company. After that 
may layers are created because there is company to company 
transaction and much more complex structure of shell company 
compromising the finaBcial integration of nation is formed which 
makes it almost impossible to identify the real beneficiary 
(natural person) involved in these shell companies. These shell 
companies have been used for purpose of money laundering 
at a large scale. The fake PAN cards have facilitated the 
enormous growth of shell companies which were being used 
for layering of funds and illegal transfer of such funds to some 
other companies/persons or parked abroad in the guise of 
remittances against import. The share capital of these shell 
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companies are subscribed by fake shareholders through' 
numerous bank accounts opened with the use of fake PAN 
cards at the initial stage. 
· 
(iv) According to the respondents, this provision will help in 
widening of tax base. It was pointed out that more than 113 
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crore people have registered themselves under Aadhaar. Adults 
coverage of Aadhaar is more than 99%. Aadhaar being a 
unique identification, the problem ofbogus or duplicate PANs 
can be dealt with in a more systematic and foolproof manner. 
According to the respondent, in fact, it has already shown results 
c 
as Aadhaar has led to weeding outduplicate and fakes in many 
welfare programmes such as PDS, MNREGS, LPG Pahal, Old 
Age pension, scholarships etc. during the last two years and it has 
led to savings ofapproximately Rs.49,000 crores to the exchequer. 
58. Mr. Rohatgi also referred to that portions of the counter 
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affidavit which narrates the following benefitsAadhaar seeding in PAN 
database: 
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(a) Permanent Account Number (PAN) - PAN is a ten-digit 
alpha-numeric number allotted by the Income Tax Department 
to any 'person' who applies for it or to whom the department 
a.Hots the number without an application. One PAN for one 
person is the guiding principle for allotment of PAN. PAN 
acts as the identifier of taxable entity and aggregator of all 
financial transactions undertaken by the. taxable entity i.e.'.· 
'person'. 
(b) Legal
provisions relating to PAN - PAN is the key or 
identifier of all computerized records relating to the taxpayer. 
The requirement for obtaining of PAN is mandated through 
Section l 39A of the Act. The procedure for application for 
PAN is prescribed in Rule 114 of the Rules. The forms 
prescribed for PAN application are 49A and 49AA for Indian 
and Foreign Citizens/Entities. Quoting of PAN has been 
mandated for certain transactions above specified threshold 
value in Rule l 14B of the Rules. 
(c) Uniqueness of PAN - For achieving the objective of one 
PAN to one assessee, it is required to maintain uniqueness of
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
71 
PAN. The uniqueness of PAN is achieved by conducting a A 
de-duplication check on all already existing allotted PAN against 
the data furnished by new applicant. Under the existing system 
· of PAN only demographic data is captured. De-duplication 
process is carried out using a Phonetic Algorithm whereby a 
Phonetic PAN (PPAN) is created in respect of each applicant 
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using the data of applicant's name, father's name, date ofbirth, 
gender and status. By comparison of newly generated PPAN 
with existing set of PPANs of all assessees duplicate check is 
carried out and it is ensured that same person does not acquire 
multiple PANs or one PAN is not allotted to multiple persons. 
Due to prevalence of common names and large number of C 
PAN holders, the demographic way of de-duplication is not 
foolproof. Many instances are found where multiple PANs · 
have been allotted to one person or one PAN has been allotted 
to multiple persons despite the application of above-mentioned 
de-duplication process. While allotment of multiple PAN to 
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one person has the risk of diversion of income of person into 
several PANs resulting in evasion of tax, the allotment of same 
PAN to multiple persons results in· wrong aggregation and 
assessment of incomes of several persons as one taxable entity 
represented by single PAN. 
( d) Presently verification of original documents in only 0.2% cases 
(200 out of 1,00,000 PAN
applications) is done on a random 
basis which is quite less. In the case of Aadhaar, 100% · 
verification is possible due to availability of on-line Aadhaar 
authentication service provided by-the UIDAI. Aadhaar 
seeding in PAN database will make PA_N allotment process 
more robust. 
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(e)Seeding of Aadhaar .number into PAN database will allow a 
robust way of de-duplication as Aadhaar number is de-
duplicated using biometric attributes of fingerprints and iris 
images. The instance· of a duplicate Aadhaar is almost non-
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existent Further seeking of Aadhaar will allow the Income 
Tax Department to weed out any undetected duplicate PANs. 
It will also facilitate resolution of cases of one PAN allotted to 
multiple persons. 
59. After stating the aforesaid purpose, rational and benefits, the, H
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learned Attorney General submitted that the main provision is not violative 
of any constitutional rights of the petitioners. According to him, the 
provision was not discriminatory at all inasmuch as it was passed on 
reasonable classification, the two classes being tax payers and non tax 
payers. He also submitted that it was totally misconceived that this 
provision had no rational nexus with the objective sought to be achieved 
in view of the various objectives and benefits which were sought to be 
achieved by seeding Aadhaar with PAN. Mr. Rohatgi also referred to 
various orders and judgments of this Court whereunder use of Aadhaar 
was endorsed, encouraged or even directed. Following instances are 
cited: 
60. The importance and utility of Aadhaar for delivery of public 
services like PDS, curbing bogus admissions in schools and verification 
of mobile number subscribers has not only been upheld but endorsed 
and recommended by this Court. 
61. This Court in the case of PUCL v. Union of India28 has 
approved the recommendations of the High Powered Committee headed 
by Justice D.P. Wadhwa, which recommended linking of Aadhaar with 
PDS and encouraged State Governments to adopt the same. 
62. This Court in State of Kera/a & others vs. President, Parents 
Teachers Association, SNVUP and Others29 has directed use of 
Aadhaar for checking bogus admissions in schools with•the following 
observations: 
"18.
We are, however, inclined to give a direction to the Education 
Department, State ofKerala to forthwith give effect to a circular 
dated 12.10.2011 to issue UID Card to all the school children and 
follow the guidelines and directions contained in their circular. 
Needless to say, the Government can always adopt, in future, 
better scientific methods to curb such types of bogus admissions 
in various aided schools." 
63. While monitoring the PILs relating to night shelters for the 
homeless and the right to food through the public distribution system, this 
Court has lauded and complimented the efforts of the State Governments 
for inter alia carrying out bio-metric identification of the head of family 
of each household to eliminate fictitious, bogus and ineligible BPL/ AA Y 
household cards. 
"c2011) 14 sec 331 
"c2013) 2 sec 10s
BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
73 
64. A two Judge Bench of this court in People's Union for Civil 
A 
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Liberties (PDS Matter) v. Union of India & Ors. 30 has held that 
computerisation is going to help the public distribution system in the countly 
in a big way and encouraged and endorsed the digitisation of database 
including bio-metric identification of the beneficiaries. In fact, this Court 
had requested Mr. Nandan Nilekani to suggest ways in which the 
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computerisation process of PDS can be expedited. 
65. In the case of People's Union/or Civil Liberties v. Union of 
India & Ors. 31 , this Court has also endorsed bio-metric identification of 
homeless persons so that the benefits like supply of food and kerosene 
oil available to persons who are below poverty line can be extended to 
C 
the correct beneficiaries. 
66. In the case of Lokniti Foundation v. Union of India & 
Ors.31, this Court has disposed of the writ petition while approving the 
Aadhaar based verification of existing and new mobile number subscribers 
and upon being satisfied that an effective process has been evolved to 
D 
ensure identity verification. 
67. Mr. Sengupta, learned counsel arguing on behalf of UIDAI, 
made additional submissions specifically answering the doctrine of 
proportionality argument advanced by Mr. Datar as well as on the aspect 
ofinformational self-determination. His submissions in this behalf were 
that proportionality should not be read into
Article 14 of the Constitution 
and in any case no proportionality or other Article 14 violation had been 
made out in the instant case. He also argued that there is no absolute 
right to informational self-determination; to the extent such right may 
exist it is part of the Right to Privacy whose very existence contours is 
before the Constitution Bench of this Court. 
68. Adverting to the doctrine of proportionality, he referred to the 
judgments of this Court iu Modern Dental College and Research 
Centre33 wherein this doctrine is explained and applied and submitted 
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that the doctrine is applied only in the context of Article 19(1 )(g) and not 
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Article 14 of the Constitution. He pointed out that proportionality is not 
'' (2013) 14 sec 368 
"(2010) s sec 318 
32 Writ Petition (C) No. 607 of2016 decided on February 06, 2017 
33 Footnote 7 above 
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[2017] 7 S.C.R. 
A the governing law even in"the United Kingdom for cl11ims analogous to 
Article 14 of the Constitution. His passionate submission was· that 
proportionality supplanting traditional review in European Court of Human 
Rights cases and not remaining applicable in traditional judicial review 
claims has caused immense confusion in British pubic law. Narrating 
the stru~ture of Article 19, submission of Mr. Sengupta was that freedoms 
which were enlisted under Article 19(1) were not the absolute freedoms 
and they were subject to reasonable restrictions, as provided under sub-
article (2) to (6) of Article 19 itself. It is because of this reason, while 
examining as to whether a par.ticular measure violated any of the freedoms 
or was a reasonable restriction, balancing exercise was to b~ done by 
B 
C the courts and this balancing exercise brings the element of proportionality. 
However, this was not envisaged in Article 14 at all. 
69. Coming to the impugned provision and referring to the penal 
consequences provided in proviso to Section 139AA(2), he argued that 
the test of whether' penalty is proportionate is not the same as the doctrine 
D of proportionality. Proportionate penalty _is an incident of arbitrariness 
whereas there cannot be any arbitrariness qua a. statute. He also 
submitted that on facts penalty provided in the impugned provision is 
deemed to be the same as that for not filing income tax return with valid 
PAN.
He also argued that there was rio violation of Article 14 inasmuch 
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as classification had a reasonable nexus with the object enshrined in the 
impugned provision. It was open to the Legislature t~ determine decrease 
of harm and act accordingly and the Legislature does not have to tackle 
problem 100% for it to have a rational nexus. Since individual assessees 
are prone to the problem arid financial frauds using fake PAN, whether 
individually Or in the guise of legal persons, Aadhaar aims at tackling 
problem which exhibited a rational nexus with the object. According to 
Mr. Sengupta, there wa~ no discriminatory object inasmuch as the object . 
is to weed out duplicate PANs that allow financial and tax fraud. 
Therefore, the provision is not discriminatory in nature. 
70. Dealing with the argument of right to informational self-
G determination, the learned counsel submitted that as a matter of c.urrent 
practice in India, no absolute right to determine what information about 
oneself one wants to disclose; several pieces of personal information 
. are required by .Jaw. The perils of comparative law in merely transplanting 
from German law; the need to develop an Indian understanding of privacy 
H and self-determination in the Indian context. Even in German law, the
'BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
75 
·judgment quoted by the petitioner does not demonstrate an untrammelled 
A 
Right to Privacy or information self-determination. The world over, 
infopnation over oneself is the most critical element of privacy; the 
contours of which are to be determined by a Constitution Bench. 
A Caveat 
71. Before we enter into the discussion and weigh the merits of B 
arguments addressed on both sides, one aspect needs to be made 
absolutely clear, though it has been hinted earlier as well. Conscious of 
the fact that challenge to Aadhaar scheme/legislation on the ground that 
it was violative of Article 21 of the Constitution is pending before the 
Constitution B1:nch and, therefore, this Bench could not have decided c 
that issue, counsel for the'Petitioners had submitted that they would not 
be pressing the issue of Right to P:ivacy. Notwithstanding the same, it 
was argued by Mr. Divan, though in the process Mr. Div!ln emphasised 
that he was touching upon other facets of Article 21. Likewise, Mr. 
Salman Khurshid while arguing that the impugned provision was violative 
of Article 21, based his submission on Right to Human Dignity as a facet 
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of Article 21. He also emphasised that the concept of human dignity 
was different from.Right to Privacy. We have taken note of·these 
arguments above. However, we feel all these aspects argued by the 
petitioners overlap with privacy issues as different aspects of Article 21 
of
the Constitution. Right to Let Alone has the shades of Right to Privacy 
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and it is so held by the Court in R. Rajagopal & Anr. v. State of Tamil 
Nadu & Ors. 34: 
"26. We ni.ay now summarise the broad principles flowing from 
the above discussion: 
(1) The right to privacy is implicit in the right to life and liberty 
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guaranteed to the citizens of this country by Article 21. It is a 
"right to be let alone". A citizen has a right to safeguard the privacy 
of his own, his family, marriage, procreation, motherhood, child-
bearing and education among other matters. None can publish 
anything concerning the above matters without .his consent -
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whether truthful or otherwise and whether laudatory or critical. If 
he does so, he would be violating the right to privacy of the person 
concerned and woµld be liable in an action for damages. Position 
rpay, however, be different, if a person voluntarily thrusts himself 
·~ (1994) 6 sec 632 
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into controversy or voluntarily invites or raises a controversy. 
(2) The rule aforesaid is subject to the exception, that any 
publication concerning the aforesaid aspects becomes 
unobjectionable if such publication is based upon public records 
including court records. This is for the reason that once a matter 
becomes a matter of public record, the right to privl!,cy no longer 
subsists and it becomes a legitimate subject for comment by press 
and media among others: We are, however, of the opinion that in 
the interests of decency [Article 19(2)] an exception must be 
car¥ed out to this rule, viz., a female who is the victim of a sexual 
assault, kidnap, abduction or a like offence should not further be 
subjected to the indignity of her name and the incident being 
publicised in press/media. 
(3) There is yet another exception to the rule in (1) above -
indeed, this is not an exception but an inder 
ent rule. In the 
case of public officials, it is obvious, right tc· privacy, or for that 
matter, the remedy of action for damages is simply not available 
with respect to their ~cts and conduct relevant to the discharge of 
their official duties. This is so even where the publication is based 
upon facts and statements which are not true, unless the official 
establishes that the publication was made (by tfi€defendant) with 
reckless disregard for truth. In such a ca~~, it would be enough 
for the
defendant (member of the press or media)' to prove that 
he acted after a reasonable verification of th~ facts; it is not 
necessary for him to prove that what he has written is true. Of 
course, where the publication is proved to be false and actuated 
by malice or personal animosity, the defendant would have no 
defence and would be liable for damages. It is equally obvious 
that in matters not relevant to the discharge of his duties, the 
public official enjoys the same protection as any other citizen, as 
explained in (1) and (2) above. It needs no reiteration that judiciary, 
which is protected by the power to punish for contempt of court 
and Parliament and legislatures protected as their privileges are 
by Articles 105 and 104 respectively of the Constitution oflndia, 
represent exceptions to this rule. 
(4) So far as the Government, local authority and other organs 
and institutions exercising governmental power are concerned, 
they cannot maintain a suit for damages for defaming them.
BINOY VISWAM v. UNION OF INDIA & ORS. 
77 
[A. K. SIKRI, J.] 
(5) Rules 3 and 4 do not, however, mean that Official Secrets 
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Act, 1923, or any similar enactment or provision having the force 
of law does not bind the press or media. 
( 6) There is no law empowering the State or its officials to prohibit, 
or to impose a prior restraint upon the press/media." 
So is the Right to Informational Self Determination, as specifically 
spelled out by US Supreme Court in United States Department of 
Justice v. Reporters Committee/or Freedom of the Press35• Because 
of the aforesaid reasons and keeping in mind the principle of judicial 
discipline, we have made conscious choice not to deal with these aspects 
and it would be for the parties to raise these issues before the Constitution 
Bench. Accordingly, other arguments based on Articles 14 and 19 of 
the Constitution as well as competence of the legislature to enact such 
law are being examined. 
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72. We have deeply deliberated on the arguments advanced by 
various counsel appearing for different petitioners as well as counter D 
submissions made by counsel appearing on behalf of the State. 
Undoubtedly, the issue that confronts us is of seminal importance. In 
recent times, issues about the proprietary, significance, merits and demerits 
have generated lots of debate among intelligentia. The Gov:emment 
claims that this provision is introduced in the Statute to achieve laudable 
objectives and it is in public interest. It
is felt that this technology can 
solve many development challenges. The petitioners argue that the move 
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is impermissible as it violates their fundamental rights. It falls in the 
category of, what Ronald Dworkin calls, "hard cases". Nevertheless, 
the duty of the court is to decide such cases as well and give better 
.decision. While undertaking this exercise of judicial review, let us first 
keep in mind the width and extent of power of judicial review of a 
legislative action. The Court cannot question the wisdom of the 
Legislature in enacting a particular law. It is required to ac.t within the 
domain available to it. 
Scope of Judicial Review of Legislative Act 
73. Under the Constitution, Supreme Court as well as High Courts 
are vested with the power of judicial review of not only administrative 
acts of the executive but legislative enactments passed by the legislature 
as well. This power is given to the High Courts under Article 226 of the 
35 489 U.S. 749 (1989) 
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[2017] 7 S.C.R. 
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Constitution and to the Supreme Court under Article 32 as well as Article 
136 of the Constitution. At the same time, the parameters on which the 
power of judicial review of administrative act is to be undertaken are 
different from the parameters on which validity oflegislative enactment 
is to be examined. No doubt, in exercises of its power of judicial review 
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of legislative action, the Supreme Court, or for that matter, the High 
Courts can declare law passed by the Parliament or the State Legislature 
as invalid. However, the power to strike down primary legislation enacted 
by the Union or the State Legislatures is on limited grounds. Courts can 
strike down legislation either on the basis that it falls foul of federal 
· distribution of powers or that it contravenes fundamental rights or other 
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Constitutional rights/provisions of the Constitution oflndia. No doubt, 
since the Supreme Court and the High Courts are treated as the 'ultimate 
arbiter in all matters involving interpretation of the Constitution, it is the 
Courts which have the final say on questions relating to rights and whether 
such a right is violated or not. The basis of the aforesaid statement lies 
D 
in Article 13(2) of the Constitution which proscribes the State ti-om making 
'any law which takes away or ~bridges the right conferred by Part III', 
enshrining fundamental rights. It,categorically s~ates that any law made 
in contravention
thereof, to the extent of the contravention, be void. 
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74. We can also take note of Article 372 of the Constitution at this 
stage which applies to pre-constitutional laws. Article 372(1) reads as 
under: 
"372. Continuance in force of existing laws and their adaptation.-
(!) Notwithstanding the repeal by this Constitution of the 
enactments referred to in article 395 but subject to the other 
provisions of this Constitution, all the law in force in the territory 
of India immediately before the commencement of this 
Constitution shall continue in force therein until altered or repealed 
or amended by a competent Legislature or other competent 
authority." 
In the context of judicial review oflegislation, this provision gives 
an indication that all laws enforced prior to the commencement of the 
Constitution can be tested for compliance with the provisions of the 
Constitution by Courts. -Such a power is recognised by this Court in 
Union of India & Ors. v. Sic01'! Limited & Anr.36• In that judgment, 
"(2009) 2 sec 121
·. BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K SIKRI, J.] 
79 
it was also held that since the term 'laws', as per Article 372, includes 
A 
common law the power of judicial review of legislation, which is a part 
of common law ap{llicable in India before the Constitution came into 
force, would continue to vest in the Indian courts. 
75. With this, we advert to the discussion on the grounds of judicial 
review that are available to adjudge the validity of a piece of legislation 
B 
passed by the Legislature. We have already mentioned that a particular 
law or a provision contained in a statute can be invalidated on two grounds, 
namely: (i) it is not within the competence of the Legislature which passed 
the law, and/or (ii) it is in contravention ofany of the fundamental rights 
stipulated in Part III of the Constitution or any either right/ provision of 
the Constitution. These contours of the judicial review are spelled out in 
C 
the clear terms in case of Rakesh Kohli37, and particularly the following 
paragraphs: 
"16. The statute enacted by Parliament or a State Legislature 
cannot be declared unconstitutional lightly. The court must be able 
to hold beyond any iota of doubt that the violation of the 
D 
constitutional provisions was so glaring that the legislative provision 
under challenge cannot stand: Sans flagrant violation of the 
constitutional provisions, the law made by Parliament or a State 
Legislature is not declared'bad. 
17. This Court has repeatedly
stated that legislative enactment 
E 
can be struck, down by court only on two grounds, namely (i) that 
the appropriate legislature does not have the competence to make 
the law, and (ii) that it does not (siC) take away or abridge any of 
the fundamental rights enumerated in Part III of the Constitution 
or .any other constitutional provisions. In McDowell and Co. while 
p 
dealing with the challenge to an enactment based on Article 14, 
this Court stated in para 43 of the Report as follows: (SCC pp. 
737-38) 
""43 .... A law made by Parliament or the legislature can be 
struck dawn by courts on two grounds and two grounds alone 
G 
viz. (1) lack oflegislative competence, and (2) violation ofany 
of the fundamental rights guaranteed in Part III of th\: 
Constitution or of any other constitutional provision. There is 
no third ground .... if an enactment is challenged as violative 
" Footnote 20 above 
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of Artie; le 14, it can be struck down only if it is found that it is 
violative of the equality clause/equal p~otection clause enshrined 
therein. Similarly, if an enactment is challenged as violative of 
any of the fundamental rights guaranteed by sub-clauses (a) 
to (g) of Article 19( 1 ), it can be struck down only if it is found 
not saved by any of the clauses (2) to {6) of Article 19 and so 
on; No enactment can be struck down by just saying that it is 
arbitrary or unreasonable. Some or the other c9nstitutional 
infirmity has to be found before ii:tvalidating an Act. An 
enactment cannot be struck down on the ground that court 
thinks it unjustified. Parliament and the legislatures, composed 
as they are of the representatives of the people, are supposed 
to know and be aware of the needs of the people and what is 
good and bad for them. The court cannot sit in judgment over 
their wisdom:" 
(emphasis supplied) 
26. In Mohd. Hanif Quareshi, the Constitution Bench further · · 
observed that there was always a presumption in favour of 
constitutionality of an enactment and the burden is upon him, who 
attacks it, to sh9w tliat there flas been a clear violation of the 
, constitutional principles. It stated in paraJ 5 of the Report as under: 
(AIR pp. 740-41) 
""15 .... The courts, it is accepted, must presume that the 
legislature understands and correctly appreciates the needs of 
its own people,
that its laws are directed to problems made 
manifest by experience and that its ~iscriminations are based 
on adequate grounds. It must be borne in mind that the 
legislature is free to recognise degrees ofharm and may confine 
its restrictions to those case~ where the need is deemed to be 
the clearest and finally that in order to sustain the presumption 
of constitutionality the court may take into consideration matters 
of common knowledge, matters of common report, the history 
of the times and may assume every state of facts which can 
be conceived existing at the time of legislation." 
27. The above legal position has been reiterated by a Constitution 
Bench of this Court in Mahant Moti Das v. S.P. Sahi.
. BINOY VISWAM v. UNION OF INDIA & ORS. 
[A. K. SIKRI, J.] 
81 
28. In Hamdard Dawakhana v. Union of India, inter alia, while 
A 
referring to the earlier two decisions, namely, Bengal Immunity 
Co. Ltd. and Mahant Moti Das, it was observed in para 8 of the 
Report as follows: (Hamdard Dawakhana case, AIR p. 559): 
'"'8. Therefore, when the constitutionality of an enactment is 
challenged on the ground of violation of any of the articles in 
B 
Part III of the Constitution, the ascertainment of its true nature 
· and character becomes necessary i.e. its subject-matter, the 
area in which it is intended to operate, it!l purport and intent 
have to be determined. In order to do so it is legitimate to take 
into consideration all the factofs such as history of the legislation, 
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the purpose thereof, the surrounding circumstances and 
conditions, the mischief which it intended to suppress, _the 
remedy for the disease which the legislature resolved to cure 
and the true reason for the remedy .... " 
In Hamdard Dawakhana, the Court also followed the statement 
of law in Mahant Moti Das and the two earlier decisions, 
D 
namely, Charanjit Lal Chowdhury v. Union oflndia and State 
of Bombay v. F.R Balsara and reiterated the principle that 
presumption was always in favour of constitutionality of an 
enactment. 
xx 
xx 
xx 
30. A well-known principle that in the field of taxation, the 
legislature enjoys a.greater latitude for classification, has been 
noted l:iy this Court in a
long line of cases. Some of these 
decisions are Steelworth Ltd. v. State ofAssam; Gopal Narain 
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v. State of U.P.; Ganga Sugar Corpn. Ltd. v. State of F 
U.P.; R.K. Garg v. Union of India; and Statt;: of 
W.B. v. E.I.T.A. India Ltd." 
76. Again inAshok Kumar Thakur v. Union of India & Ors. 38, 
this Court made the following pertinent observations: 
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"219. A legislation passed by Parliament can be challenged only 
on constitutionally recognised grounds. Ordinarily, grnunds of 
attack of a legislation is whether the legislature has legislative 
competence or whether the legislation is ultra vires the provisions 
" (2008) 6 sec 1 
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of the Constitution. If any of the pro'visions of the legislation violat~s 
fundamental rights or any other provisions of the Constitution, it 
could certainly be a valid ground to set aside the legislation by 
invoking the power of judicial review. A legislation could alsq be 
challenged as unreasonable if it violates the principles of equality 
adumbrated in our Constitution or it unreasonably restricts the 
fundamental rights under Article 19 of the Constitution. A legislation 
cannot be challenged simply on the ground of unreasonableness 
because that by itself does not constitute a ground. The validity of 
a constitutipnal amendment and the validity of plenary legislation 
have to be decided purely as questions of constitutional law. This · 
Court in State of Rajasthan v. Union of India said: (SCC p. 660, 
para 149) 
"149 .... if a question brought before the court is purely a 
political question not invl!llving determination of any legal or 
constitutional right or obligation, the court would not entertain. 
it, since the court is concerned only with adjudication of legal 
rights and liabilities." 
' 
Therefore, the plea of the petitioner that the legislation itself was 
intended to please a section of the community as part of the vote 
catching mechanism is not a legally acceptable plea and it is only 
to be rejected." 
77. Furthermore, it also needs to be specifically noted that this 
Court emphasised that
apart from the aforesaid two grounds no third 
ground is available to invalidate any piece oflegislation. In this behalfit 
would be apposite to reproduce the following observations from State of 
F 
A.P. & Ors. v. McDowell & Co. & Or~.
39
, which is a judgment rendered 
by a three Judge Bench of this Court; 
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"4:3; .. A law made by Parliament or the legislature can be struck 
down by courts on two grounds and two grounds alone, viz., (1) 
lack of legislative competence and (2) violation of any of the 
fundamental rights guaranteed in Part III of the Constitution or of 
any other constitutional provisiqn. There is no third ground. We 
do not wish to enter into a discussion of the concepts of procedural 
unreasonableness and substantive unreasonableness -
concepts 
inspired by the decisions of United States Supreme Court. Even 
" ( 1996) 3 sec 109
. BINOY VISWAM v. U:[\/10~ OF INDIA & 6RS. 
83 
. 
[A. K. SIKRI; J.] . 
.. 
. 
\A . 
. 
. 
in U.S.A., these concepts and in ·particullr the concept of A 
substantive due process have proved to be of unending controversy, 
the latest thinking tending towards a severe curtailment of this 
ground (substantive due process). The main criticism against the 
ground of substantive due process being that it seeks to set up the 
courts as arbiters of the wisdom of the legislature in enacting the 
B 
particular piece of legislation. It is enough for us to say that by 
whatever mime it is characterised, the ground of invalidation must 
fall within the four comers of the two grounds mentioned above. 
In other wo_rds, say, ifan enactment is challenged as violative of 
Article _14, it can be struck down only if it is found that it is violative 
of the equality clause/equal protection clause enshrined therein. 
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Similarly, if an enactment is challenged as ".iolative of any of the 
fundamental rights guaranteed by clauses (a) to (g) of Article 
19( 1 ), it can be struck down only if it is found not saved by any of 
the clauses (2) to {6) of Article 19 and so on. No enactment can 
be struck down by just saying that it is arbitrary or unreasonable. 
D 
s·ome or other constitutional infirmity has to be found before 
invalidating an Act. An enactment cannot be struck down on the 
,. 
ground that court thinks it unjustified. Parliament and the · 
legislatures, composed as they are of the
representatives of the 
people, are supposed to know and be aware of the needs of the 
people and what is good and bad for them. The court cannot sit in 
E 
judgment over their wisdom. In this connection, it should be 
remembered that even in the case of administrative action, the 
scope of judicial review is limited .to three grounds, viz., (i) 
unreasonableness, which can more appropriately be called 
irrationality, (ii) illegality and (iii) procedural impropriety 
·(see Council of Civil Service Unions_ v. Minister for Civil 
F 
Service [1985 AC 374: (1984) 3 All ER 935 : (1984) 3 WLR 
1I74l which decision has been accepted by this Court as well). 
The appllcabiiity of doctrine of proportfonaiity even in administrative 
law sphere is yet a debatable issue. (See the opinions of Lords 
Lowry and Ackner in R. v. Secy. of State for Home Deptt., ex p 
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· Brind [1991 AC 696 : (1991) I All ER 720] AC at 766-67 and 
· 762.) It would be rather odd if an enactment were to be struck 
down by applying the said principle when its applicability even in 
administrative law sphere is not fully and finally settled ... " ·· 
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78. Another aspect in this context, which needs to be emphasized, 
is that a legislation cannot be declared unconstitutional on the ground 
that it is 'arbitrary' inasmuch as examining as to whether a particular 
Act is arbitrary or not implies a value judgment and the courts do not 
examine the wisdom of legislative choices and, therefore, cannot 
undertake this exercise. This was so recognised in a recent judgment of 
this Court Rajbala & Ors. v. State of Haryana & Ors. 40 wherein this 
Court held as under: 
" 
64. From the above extract from McDowell & Co. case it is clear 
that the courts in this country do not undertake the task of declaring 
a piece of legislation unconstitutional on the ground that the 
legislation is "arbitrary" since such an exercise implies a value 
judgment and courts do not examine the wisdom of legislative 
choices unless the legislation is otherwise violative of some speci fie 
provision of the Constitution. To undertake such an examination 
would amount to virtually importing the doctrine of"substantive 
due process" employed by the Amefican Supreme Court at an 
earlier point of time while examining the constitutionality oflndian 
legislation. As pointed out in the above extract, even in United 
States the doctrine is currently of doubtful legitimacy. This Court 
Jong back· in A.S. Krishna v. State of Madras declared that the 
doctrine of due process has no application under the Indian
Constitution As pointed out by Frankfurter, J., arbitrariness became 
a mantra. 
65. For the above reasons, we are of the opinion that it is not 
F 
permissible for this Court to declare a statute unconstitutional on 
the ground that it is 'arbitrary'." 
79. Same sentiments were expressed earlier by this Court in K. T. 
Plantation Private Limited & Anr. 41 in the following words: 
"205. Plea of unreasonableness, arbitrariness, proportionality, etc. 
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always raises an element of subjectivity on which a court cannot 
strike down a statute or a statutory provision, especially when the 
right to property is no more a fundamental right. Otherwise the 
· court will be substituting its wisdom to that of the legislature, which 
•• (2016) 2 sec 445 
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41 Footnote 19 above ..