This is a record of the proceedings in the Supreme Court bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the previous days’ proceedings here: Day 1, Day 2, Day 3, Day 4, Day 5, Day 6, Day 7, Day 8, Day 9, Day 10, Day 11, Day 12, Day 13, and Day 14.
Senior Advocate Arvind Datar continued his arguments for petitioners.
Mr. Datar began with his submissions on the Money Bill argument, explaining how passing the Aadhaar Act off as a money bill is unconstitutional. He explained how the word ‘final’ in Article 110 (3) of the Constitution of India does not mean the certification is beyond judicial review and stated that there is a long line of precedent. He would be developing this point further later.
He addressed the Prevention of Money Laundering Act and the consent form for Aadhaar. He said that giving consent in the form when one is mandated by law to link Aadhaar is absurd when the bank account would be rendered inoperable unless the individual consents. If the individual does not give Aadhaar, their accounts will become inoperable. This can’t be called consent. There is no option to opt out. He asked whether consent should receive such shoddy statement in a democracy.
Mr. Datar referred to the RBI, TRAI, and IRDAI applications to modify the 11.08.2015 order to allow them to link Aadhaar but how the Supreme Court refused to allow it in the 15.10.2015 order. He read the statement of objects and reasons for Aadhaar Act. Justice Chandrachud commented that it appears to be confined to Section 7.
Mr. Datar said that Aadhaar was preceded by the NIA bill. He read out the statement of objects, long title & Preamble of Aadhaar Act. He said that Aadhaar Act was only for the purpose mentioned in the objects and using it for any other purpose would be invalid.
Justice Chandrachud said that the moment you extend Aadhaar to private entities, the money bill aspect will be gone. Mr. Datar agreed. He said that the Aadhaar Act was passed as a money bill without any regard to the recommendations of Rajya Sabha. He pointed out the amendments suggested by the Rajya Sabha to the bill.
Justice Bhushan wanted to know the problem with using Aadhaar at other places, for example, a driving license. Mr. Datar said that His Lordship may not face it but others have to show their ID card while entering airport. Using it for something like this is different. But to say one cannot enter an airport without a driving license is absurd!
Mr. Datar pointed out that the Rajya Sabha had recommended the deletion of Section 57. He read out Parliament speeches, beginning with Rajya Sabha MP Jairam Ramesh, who had objected to the Aadhaar Act and asked to eschew haste. He emphasized that Section 57 was sought to be rejected and Rajya Sabha suggested an amendment to delete Section 57. The recommendation was rejected by the Lok Sabha. If it had not been a Money Bill, it would go to Rajya Sabha, the recommendations would be considered and Section 57 would not be there. An opt out clause would be there. He suggested therefore that Section 57 may be struck down if the Act has to be saved.
Mr. Datar defined consent and free consent as per the Contract Act. He said that consent in the case of the Aadhaar Act is vitiated. Consent has been understood under jurisprudence as consensus ad idem (mutual agreement or meeting of the minds) since the 1872 Contract Act. Under the Aadhaar Act, consent is almost treated as lawful mandate of submission to coercion!
Mr. Datar stressed that if one party is in a dominating condition, it is not a free consent which is the case in this matter.
Mr. Datar handed over a document by the US Department of Justice – Records, Computers and the Rights of Citizens and read out relevant parts. He read out US Congress proceedings on not allowing the use of Social Security Number (SSN) as the standard unique identifier across the States, including senate proceedings that appear to echo all data aggregation and data surveillance issues at play in this case. He read out criticism of SSN as a universal identifier and the proceedings in the Senate introducing the Privacy Act of 1974, including the part where it says it shall be unlawful for any federal agency to deny any benefits to which an individual is entitled for refusal to show the SSN. (This was an important argument, eloquently made)
Mr. Datar propositioned that after the Puttaswamy Judgment, Section 57 of the Aadhaar Act cannot stand.
Mr. Datar stressed that to enroll or not enroll is an individual’s choice and decisional autonomy to part with or not to part with personal information. He stressed that today it is not possible for a person to survive without an Aadhaar. It has its intrusion from birth to death of an individual.
Reading Section 56 of the Aadhaar Act, Mr. Datar focused on the words ‘any law’. He argued that if the law means delegated legislation, then this section has to go for delegating essential functions – excessive delegation. He referred to the proviso and absurdity of law making giving ‘consent’ mandatory by laws such as PMLA Act. If ‘any law’ meant primary legislation, then it would violate Articles 14 and 21 of the Constitution.
Mr. Datar gave the example of being unable to start a business without a GST number for which an Aadhaar number is required. He referred to how usage may be authorised by a “contract” in Section 57.
Justice Chandrachud asked what the compelling interest of the state was in the case of private entities asking for Aadhaar under Section 57. Section 7 was understandable, he said. Mr. Datar agreed.
Mr. Datar said that everything outside Section 7 is suspect for this reason, but Section 7 is bad for other reasons. He described the absurdity of Tirupati temple requiring Aadhaar for darshan! He pointed out that any purpose under Section 57 means all purpose and not limited purposes. “Any purpose” cannot be all purposes!
Excessive Delegation
Mr. Datar stressed that definitions of biometrics and core biometrics cannot be left to the executive but legislature has to define that.
Section 7 of the Aadhaar Act and exclusion
Mr. Datar said that to get Aadhaar, other approved IDs are needed. However, once he gets Aadhaar, those IDs are rendered ineffective.
Mr. Datar referred to the Economic Survey 2016 and 2017 noting more than 49% exclusion in Jharkhand. He called it manifest arbitrariness that destroys existing identities. Constitutional rights such as right to food cannot be made contingent on a faulty probabilistic method. If this is not manifest arbitrariness, nothing is!
Mr. Datar referred to Swaraj Abhiyan vs Union of India & Ors judgment as to how Supreme Court directed the government that even ration card is just in the nature of evidence aliunde and cannot be insisted upon for disbursement of grain. He noted the decision in Swaraj Abhiyaan case, that the ration card which is mandatory to get food supply, should be substituted with valid ID. He said that primary and secondary evidence concept is that if primary evidence is not available then you can show secondary evidence.
Challenge to Regulations of authentication – Regulations 14, 27 and 28 as manifestly arbitrary.
Also Regulation 29. Mr. Datar referred to absolute shocking reference to children Aadhaar numbers being deactivated automatically at 5 years.
Mr. Datar proceeded to Section 139AA of the Income Tax Act. He also mentioned the Binoy Viswam (Aadhaar PAN link) judgment delivered last year. He said that paragraph 108 in Binoy Viswam judgment requires reconsideration. Justice Sikri said that he understood the same after Justice Nariman judgment in Triple Talaq case and Puttaswamy judgment.
Referring to paragraph 118 of the judgment, he said that after the Puttaswamy judgment, it is the personal autonomy of the person whether she wants to take Aadhaar or not or even if she has Aadhaar – whether she wants to link Aadhaar or not.
He referred again to the Section 139AA and the absurdity of exercise of a right under one Act entailing penal consequences is another. He termed this unreasonable classification and manifest arbitrariness.
Mr. Datar brought up the “foolproofness” of Aadhaar deduplication and the cunning of Income Tax Department to make Aadhaar necessary for uploading the return, despite the judgment in Binoy Viswam. He then pointed out that The Attorney General, during that case had stated linking Aadhaar with PAN is the “only foolproof method” to ensure there are no fake PAN and described how people can just get their return accepted and processed with 120s. He said that after his four decades as tax lawyer, he can only laugh at the suggestion that linking PAN with Aadhaar will cure black money! (Justice Chandrachud smiled wryly)
Mr. Datar said that if the purpose is to eliminate fakes, it need not be perpetual. After achieving the purpose, the data should be returned. What is the need to keep it perpetually? He submitted that similarly, people who have Aadhaar but do not want to link have that choice and cannot be mandated to link.
Mr. Datar said that far-reaching circulars are issued infringing rights under Part III of the Indian Constitution. He referred to Rai Sahib Ram Jawaya Kapur & Ors vs State of Punjab case. He said that when it is necessary to encroach upon rights, a legislation is needed. This can’t be done via circulars.
Mr. Datar’s next argument was on Article 73 of the Constitution. He said that when a Bill is under consideration, Article 73 powers cannot be read as unbridled. He said that all these rules were passed in 2010 when NIA bill was under consideration and said that if on the same matter, an active bill is pending in the Parliament, the executive can’t excercise power as per Article 73. A savings clause cannot save the executive action violating fundamental rights.
Mr. Datar brought up the brazen violations of Supreme Court orders again and again inexplicable in Aadhaar case. He contrasted this with how in the highways liquor and jallikattu cases everyone fell in line but in Aadhaar alone there is inexplicable impunity.
(Bench rises for lunch. To continue at 2:30 pm.)
Session 2
Mr. Datar took the court through the interim orders passed in the case. He pointed out that in Gujarat, one cannot apply for NEET entrance exam without production of Aadhaar, the last date being 9 March. He said that it is a clear violation of the interim orders of the Court. He said that despite the orders of the Supreme Court, nobody is following them. It is a case of contempt of Court. He brought the attention of the court to the interim order passed on 15th December, 2017.
Mr. Datar’s last submission was that there should be a direction for including guidelines for deletion of data and for opting out of Aadhaar. He concluded by quoting a paragraph from Anwar Ali Sarkar judgment on Articles 14 & 21 about motives being just, fair and reasonable.
The Attorney General said that it has not authorised CBSE to make Aadhaar mandatory for entrance exams. He further said that those interim orders of the court can apply only to pre-Act actions and not after the Act came into force. Discussion followed regarding Aadhaar being made mandatory for NEET. Bench says that any such authority has the right to ask for some kind of identification but not exclusively Aadhaar.
The Bench says that they will consider the relief for this particular case at the end of Mr. Chidambaram’s arguments. Petitioners pressed for relief in case of Aadhaar-bank account linking as well. Justice Chandrachud said that they cannot extend the dates for linking at the last moment because the financial institutions will be in a state of uncertainty till then thinking 30th to be the last date for linking (meaning thereby that interim relief should be granted much before the last date).
Senior Advocate P. Chidambaram commenced his arguments on Money bill by questioning if one can bypass the scrutiny of Rajya Sabha by terming a bill as Money Bill. He read Article 110 in the Constitution of India pertaining to the introduction and passage of bills. He further read Article 117 in the Constitution relating to the provisions on financial bills and explained that a money bill is a subset of financial bill. He distinguished between money bill and financial bill. He said it can only be introduced in Lok Sabha. It cannot be introduced in Rajya Sabha. In this case, Rajya Sabha becomes only a recommending house. They have no legislative power but only recommendative power.
Mr. Chidambaram said that a money bill is a very special kind of bill. Therefore, in the light of denudation of the powers of Rajya Sabha and deprivation of powers of President, these provisions should be construed very narrowly and strictly so that nothing escapes in the guise of money bill. He pointed out the difference between Ar. 117 and 110- money bill and financial bill. Says that only substantive difference barring the procedural aspects is the use of word ‘only’ and hence, this word should be given greatest importance.
He read out judgments on the interpretation of word ‘only’ and said that even if there’s a small intrusion, the word ‘only’ gets diluted. He referred to Articles which make use of other words thus clearly excluding the jurisdiction of the court – Articles 74(2), 163(2), 163(3) & 363 on interpretation.
Mr. Chidambaram read out Article 103(1) on the disqualification of members.Even in that case, the provision says that the decision of President shall be final. However, he referred to the euphemism wherein it is not actually the decision of President but of the Election Commission which will be final. To give context, Mr. Chidambaram elaborated on the point of finality as to who decides whether a bill is a money bill or not. Article 110 (3) says that the decision of speaker of the House of the People (Lok Sabha) shall be final.
The Court passed an interim order on the CBSE NEET entrance exam and all other All-India examination that the applicants need not produce Aadhaar number for applying. They can produce any alternative means of identification including Ration card, driving licence, etc. The Court also directed that this order be communicated to CBSE for uploading on its website. The Court will look into the extension of deadlines of deadlines after PC has finished his arguments on the next date.
Court rose for the day. Hearing to continue on Tuesday, 13th March, 2018.
Summary of hearing based on tweets by Prasanna S and SFLC
