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Constitutional Validity of Aadhaar, Day 16

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 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9, Day 10, Day 11, Day 12, Day 13Day 14, and Day 15.

Senior Advocate P. Chidambaram continued his arguments for his petitioner Jairam Ramesh, challenging the Aadhaar Act on the ground that it was incorrectly certified as a Money Bill. His third proposition was that the speaker’s decision is not final, it is subject to judicial review. He read relevant excerpts from the case of Sub-committee on judicial accountability vs Union of India.

Speaker’s decision is not final, it is subject to judicial review

Mr. Chidambaram went on to read the decision in S R Bommai v. Union of India,where despite finality of the satisfaction of President to proclaim an emergency or President rule, such satisfaction was held to be subject to judicial review – paragraph 90 “the satisfaction of the President mentioned in clause (1), shall be final and conclusive and shall not be questioned in any court on any ground.” He explained the difference between various phrases such as : final, conclusive, and “shall not be questioned in any court”.

Mr. Chidambaram read on the different cases referred in SR Bommai on the scope of judicial review and a similar reference to Kihoto Hollohan case where final is distinguished as beyond appeal, but not beyond review.

Mr. Chidambaram said that any Bill incorrectly passed as a Money Bill strikes at the root of one of the Basic features of the Constitution. Federalism. Rajyasabha is the council of the States.

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He referred to the Rajarampal v Speaker judgment and Article 122 of the Indian Constitution.Mr. Chidambaram read on the case, said that validity of any proceeding in the Parliament on grounds of irregularity of procedure cannot be looked into by the court. However, illegality can be a ground for the courts to exercise judicial review. Justice Bhushan agreed with him that judicial review on illegality is available and merely the ground of procedural irregularity is barred.

Mr. Chidambaram Further read cases and said that if the impugned procedure adopted in Parliament is illegal and unconstitutional, judicial review lies. Mr. Chidambaram Further read the case of Mohd.Saeed Siddiqui vs State Of U.P. wherein Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 was passed as a money bill.It was argued in the above case that the Bill was passed only by the Legislative Assembly and not by both the Houses, thus it was bad in law. The court however held that the decision of the Speaker that it is a Money Bill is final and the said decision cannot be disputed. It is a 3-judge bench decision.

The bench asked Mr. Chidambaram to read some excerpts in the case of Mangalore Ganesh Beedi Works vs. State of Mysore AIR 1963 SC 589. Mr. Chidambaram said that the above case doesn’t discuss anything but only makes a conclusion that the validity of the Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Art. 202 of the Constitution.

A discussion followed on the decision in case of Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha. Mr. Chidambaram said that if the procedure is illegal and unconstitutional, it will be open to scrutiny in the court of law. Mr. Chidambaram said that in the case of Siddiqui, what was challenged was the amendment act. He said that there was no discussion in the case why this act was a money bill.

Mr. Chidambaram Now read the decision in case of Yogendra Kumar Jaiswal vs The State Of Bihar.

Mr. Chidambaram Fourth Submission: Rajya Sabha has an important role in a federal constitution.

The Upper house in a bicameral constitution cannot be bypassed. Mr. Chidambaram read the decision in Kuldip Nayar vs Union Of India on the significance of Rajya Sabha. said it is an important part of our federal structure.

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(lunch break)

Session 2

Mr. Chidambaram said that the concept of money bill is an ancient one. He went into the history of it and emphasized the restricted domain which constitutes a money bill. He referred to the Constitution of Ireland and the definition of money bill contained therein, focusing on the use of word ‘only’.

Mr. Chidambaram referred to the debate in Rajya Sabha on Aadhaar bill. He said that the question why it was termed as money bill was raised by an MP in the discussions. The petitioner- Jairam Ramesh had moved for amendments in the bill which were adopted in Rajya Sabha. However, these amendments were not considered by the Lok Sabha and it was passed originally.

Mr. Chidambaram handed over a compilation of money bills.

Mr. Chidambaram discussed the Aadhaar bill and read the long title and Preamble. He said that the apparent object of the bill is to make a law that will fit into 110(1)(c). He discussed Section 7 in his arguments on the Money Bill aspect, going through provision by provision on why such provision can be in a Money Bill. He referred to “other purposes” in the objects of the Act.

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Mr. Chidambaram read section 23(2)(h). said that assuming the act was for benefits, words “and other purposes” have been introduced insidiously in the provision. He further said that other purposes were not defined. He gave a similar example from Section 54(2) before moving to Section 57. He called Section 57 the “most questionable” section that can never be in a Money Bill.

Justice Chandrachud asked if the threshold of justiciability* were to be crossed, which the provisions are relatable to Article 110? Mr. Chidambaram responded asking whether there should be any provision in the Act which doesn’t fall under Article 110 (a) to (g), because a money bill can’t have any provision beyond (a) to (g).

(* Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority.)

Justice Chandrachud said that Section 57 clearly is not relatable to Article 110 so long as we cross the threshold of justiciability. Mr. Chidambaram said that provisions such as Section 57, 54, 23 go beyond the scope of Article 110. He said that Article 57 goes well beyond 110. Not even a pretense of compliance with 110. It can at best be a Financial Bill. And thus it is not a money bill but merely a financial bill.

Justice Chandrachud asked if the entire Act goes or only whether those provisions that could not have been a money bill will have to be struck down. To this, Mr. Chidambaram replied that it wasn’t a money bill when introduced or certified. He said there is only one Bill and if that Bill is not a money bill, the whole Act has to go. It will go in entirety. The provisions are not severable.

Mr. Chidambaram read the relevant provisions of the Australian Constitution on money bill – there is a severability provision which is absent here in India. He said that Article 55 said that laws will have provisions relating ‘only’ to a money bill. Provisions relating to any other matter will have no effect. Justice Chandrachud was not so sure.

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Mr. Chidambaram said that in the present case, the provisions make it clear that it was not a money bill, then how could it have been passed as a money bill and the scrutiny of Rajya Sabha been bypassed. Mr. Chidambaram was certain that there is no severability here. He said this is primarily a UIDAI creation Bill and in its entirety cannot be a money bill.

Mr. Chidambaram said that if this could slip through as a money bill, virtually any bill could slip as a money bill. It sets a very dangerous precedent. A Money bill is an extremely narrow subset of financial bill. This bill goes far beyond the intended purpose of delivery of subsidies.

P Chidambaram concluded his arguments.

Senior Advocate KV Viswanathan commenced his arguments appearing on behalf of petitioners in W.P. 1056/2017 and 833/2013. He said the Aadhaar Act violates Articles 14, 21 of the Constitution and the Privacy judgment. He said he will address the Bench on whether Union has discharged the burden of reasonableness. He said he will address how Section 59 is not a validation clause.

Mr. Vishwanathan said he has 3 submissions:

  • Collection, storage and use of data which invades privacy
  • Validity of Section 59
  • Exclusionary aspect of Section 7, which is unconstitutional

Mr. Vishwanathan handed over his submissions to the Bench.

In dealing with introduction to Section 7 argument, Mr. Vishwanathan said that it cannot be upheld on a promise made by the Union that the provision will be reasonably administered. This contrasts how mere possibility of abuse cannot strike down, where a converse is also true.

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Chief Justice of India wanted Mr. Vishwanathan to finish in 45 minutes. Mr. Vishwanathan said that he wanted time till the next day afternoon to finish his arguments. He had already given elaborate written submissions.

Mr. Vishwanathan began with discussing Section 59 of the Aadhaar Act. Justice Chandrachud said that what section 59 does is that it says whatever has been done between 2009 to 2016 should be deemed to have been done in 2016 after the passage of this Act. Thus, it doesn’t give retrospective validity to the acts. Mr. Vishwanathan asked if that could’ve been done.

Mr. Vishwanathan said that this Act was drafted on the assumption that privacy is not a fundamental right. Justice Chandrachud and Mr. Vishwanathan converse on a strangely worded Section 59 which asserts non-facts as facts. Mr. Vishwanathan said how the entire Act was drafted before the Puttaswamy judgment and therefore there was no attempt at balancing privacy interests.

Mr. Vishwanathan said that even assuming section 59 is valid, it has to be declared unconstitutional for violating Articles 14 and 21.of the Constitution of India.

Extension of deadline

Senior Advocate Arvind Datar made a submission on Aadhaar being mandatory for obtaining a Tatkal passport. He said that the government can’t make Aadhaar mandatory in violation of Supreme Court order. He also asked the Court to consider the extension of deadlines.

The Attorney General said that there are other IDs eg. water bill, electricity bill which can be taken. Aadhaar is only for expediting the procedure. He said that in case of passport under Tatkal scheme, Aadhaar is required for out of turn consideration to expedite the process. The Attorney General claimed that they are strictly following the orders of the Supreme Court.

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Some dispute followed regarding the production of an application number in case of non-production of Aadhaar. Mr. Datar read the order of 15th December. Chief Justice of India said that the deadline had been extended covering all the fields.

The Attorney General requested that the extension of deadlines should not affect section 7- the subsidies (this actually makes no sense, as the government is also claiming that people without Aadhaar are not being denied entitlements – so why would an exclusion be necessary for welfare, if the government was already not considering Aadhaar as mandatory?). The Court accepted his request.

The Court passed an interim order directing that the order passed on an earlier occasion (extending deadlines for linking Aadhaar to 31st March) stands extended till the case is concluded. Further, this extension would also cover the issue of passports.

Court rose for the day. Hearing to continue on Tuesday, 14th March, 2018.

Summary of hearing based on tweets by Prasanna S and SFLC

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Written By

Vidyut is a commentator on socio-political issues with a keen interest in behavioral sciences, digital rights and security and manages to engage her various proficiencies to bring an unusual perspective to issues related with the intersection of tech and people.

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