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Constitutional Validity of Aadhaar, Day 38: “Dhool chehre pe thi, aur aina saaf karta raha”

This is a record of the proceedings in the Supreme Court 5 judge bench hearings on the Constitutional validity of Aadhaar, which began on Feb 13, 2018. You may read the entire series here. Previous post in this series may be found here.

Senior Advocate Gopal Subramanium continued his submissions on all notifications on Section 7. He said that if each of the notifications are in furtherance of the dignity of the individual, there is no question of imposing conditions when dignity is an inherent and inalienable right.

Justice Sikri asked about deduplication and therefore reaching the correct targeted beneficiary.

Subramanium said that if it is indeed such a affirmative action law, it needs to stand to constitutional scrutiny. Is the act an enabler or is it in the guise of enabler? The act is not an instrumentality to deliver services. It is only a means of identification. He said that the aim is laudable. It may be that there is no malafide intent. But no stated purpose of the law has been attained or is attainable by the law.

Subramanium said the State has furnished no evidence to suggest that any of the 144 notifications have changed the landscape of seamless delivery of the said services. And all the evidence we have is of exclusion. He brought up how the Jharkhand cases happened when the women had ration cards!

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Subramanium cited the previous day’s judgment on the progression of rights by the Supreme Court. He gave the example of how pension has been linked to Part 3 of the Constitution. He said that Section 7 of the Aadhaar Act reinforces the asymmetry of power between the citizen and the State giving the State giving unlimited power to limit citizen rights.

Subramanium said that the law lacks proper purpose.

Subramanium said we have to read the true purpose of law and whether the law seeks to achieve that purpose. Dignity and autonomy is not preserved by section 7 of the Aadhaar Act. He stressed that a claim to a proper purpose is not proper purpose.

Subramanium said Aadhaar Act does not have a proper purpose. A claim to a proper purpose is not proper purpose. Authentication is at the heart of the Act. Failure of authentication is a ground for denial of services, but all evidence we have pointing to authentication simply not able to work reliably. He referred to Delhi High Court local commissioner’s report on how POS machines were not working at most FPS shops.

Subramanium read Section 8 of the Aadhaar Act. Digressing a bit, he said how there is no real and effective oversight over Requesting Entities.

Justice Chandrachud agreed and said in a legislation such as this, we need a hierarchy of regulators. An act like Aadhaar needs a regulator which is absent.

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Subramanium said that the state seeks to take away our data without the backing of a strong data protection framework.

Subramanium said wordslike “grant of subsidies, benefits and services” are expressions of condescension in Section 7. They are not treated like an entitlement. The burden is on the people to authenticate and establish their identity. He asked whether all affirmative action where rights under 14, 15, 16 and 17 and 21 and Fifth schedle can be subject to a condition now?

Subramanium referred to how Justice Black said how this Govt is by of and for the people and not over the people. He asked whether the State logically be the holder of such information.

Justice Chandrachud said that it is to be decided whether “subsidy” a benefit or a right “Are subsidies largesse or a matter of right?”

Subramanium said that this was settled in 1982, if not earlier, that all of these are matters of right. He pointed out that bonded labourer rehabilitation now is linked with Aadhaar contrary to the judgment in Bandhua Mukti Morcha! A recipient of a benefit should even be made aware that he is such a “beneficiary” to preserve his dignity under an ideal regime.

Justice Sikri wanted to know the difference between Census and Aadhaar under the Constitution.

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Subramanium replied that private players have access to Aadhaar data. There is no regime of protection. There is no vertical protection.

Justice Chandrachud points at how Section 7 is only an enabling provision. He asked what guides the discretion of central govt before notifications are issued.

Subramanium said Section 7 has been interpreted virtually as a mandate and not discretionary by the government inasmuch as there are as many as 144 notifications covering many many fields. There is no common denominator in Section 7 for any proportionality analysis. The section only wants to impose conditions such that all his rights as grant or dole by the state. That is the end of dignity.

Subramanium said With the march of constitutionalism, the dissolution of certain identities are guaranteed. Section on 17, 23 and 24. “The identity of the manual scavenger cannot be further entrenched. It has to be removed. Can you deny a person rehabilitation on any condition and have him return to that activity? That is simply unimaginable under our Constitution.”

Subramanium said that Section 7 does not satisfy “legitimate aim” because the true aim is different from purported aim and the means used are clearly not the least restrictive. He said that the question of balancing does not arise at all in this case. Balancing only arises in a case where there are competing right claims. Even the balance cannot emasculate any of the conflicted rights.

Subramanium said the Act is to be struck down completely as it fails all three tests laid down in Puttaswamy. There’s no legitimate state aim as the real aim is different from the purported aim. There was no law when Aadhaar was implemented and there’s no proportionality. There is no adequate justification offered by the government. The last study on fakes and ghosts was in 2007, which in turn relied on data as of 1997!

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Subramanium quoted Dr. Ambedkar that political democracy rests on four premises: 1. Individual is an end in himself. 2. Individual has certain inalienable rights guaranteed by the Constitution. 3. Individual shall not be required to relinquish any of his constitutional rights as a price of any privilege. 4. The state shall not delegate powers to private persons to govern others.

Subramanium said that the Supreme Court overruling ADM Jabalpur was a conscious one. The doctrine of mere possibility of misuse does not apply here because there is an actual denial of rights and infringement demonstrated.

Subramanium said that as far as Part 3 rights are concerned, the doctrine of deference or judicial restraint does not arise. Subramanium said that after the previous day’s judgment, the value of the 2011 standing committee report becomes important. There are a number of problems in the Act, but most importantly does not achieve its purpose.

Subramanium claimed the following reliefs:

  1. 1. Act to be struck down.
  2. All data destroyed and structures dismantled.
  3. In cases of deprivation amounting to death, compensation should be given to the families of the deceased.

Senior Advocate Gopal Subramanium concluded his submissions.

Senior Advocate Anand Grover made his brief submission after handing over his written submissions pointing out how safeguards and contracts have not been rebutted and how 139AA is specifically challenged in his petition.

The Bench rose for lunch and reassembled at 2:30pm.

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Senior Advocate Arvind Datar started his rejoinder on bank and PAN linking wanting to focus to 139AA and PMLA Rule, but addressed the Money Bill aspect briefly.

As a preliminary point on money Bill, Datar reiterated that the doctrine of pith and substance cannot apply to classification of bills. He said that Aadhaar is at best a financial bill of Category II. He said that the AG’s submission on “only” is incorrect as the intention is contrary from source documents. Pith and substance doctrine has no applicability here in interpreting an article. Only legislative entries. It can at best be a financial bill of Category 3 under Article 117(3) of the Constitution.

He said that the Doctrine of Severability does not apply. Severability applies only to validly enacted legislations. Here the Act is still born. Not validly enacted. Non est (does not exist). Refers to Khihoto Hollohan and a Pakistani Supreme Court decision to state that the whole Act should be declared null. If the Aadhaar Act is not a Money Bill, all of it must be struck down.

Datar said Mohammad Sidiqqui and Yogendra Jaiswal cases should be overruled. He said that when the Constitution said that the decision of the speaker on classification of bills is “final”, that finality is vis-a-vis the House. “Finality” does not mean beyond judicial review. He quoted an NUJS paper that catalogues the cases in which judicial review has been entertained despite the usage of the word “final”.

Datar then addressed PMLA. He showed the impropriety of amending the RBI master circular after being pointed out in Court.

The Proportionality test not satisfied, Datar stated. No evidence whatsoever. All data for deduplication of PAN cards etc are based on 2006 data.

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Datar then addressed Aadhaar-bank linking. He said that apart from the “magic wand” of black money and terrorism, no evidence has been cited for what problem bank linking is meant to solve. The justification of the law for proportionality cannot be a ritualistic exercise like this. He said that most existing bank accounts have been thoroughly authenticated. He asked what purpose is permanent bank linking going to serve.

Datar said Under PMLA, Aadhaar is not just confined to banks but has gone beyond it’s scope. Aadhaar is needed for mutual funds, insurance policies and credit cards as well, among other things. “Once you’ve determined that I’m not a fake, what further purpose is permament linking going to serve?”, he asked.

Datar said aadhaar E-KyC is fatally dumbing down existing KYC norms and is contrary to claims, actually making money laundering easier. He said that there was thus more ease for money launderers and more hassles for bona fide account operators, with a threat of account freeze!

Datar cited the Supreme Court judgment from 2011, Ram Jethmalani v Union of India, which acknowledges that there is a problem of unaccounted money, but emphasises that that does not justify erasing constitutional values.

Datar said that Aadhaar is not justified under Article 300A of the Constitution. There was no justification for blocking the account for instance.

Datar said that linking Aadhaar will never solve problems of money laundering and black money because the source of such money is different. This is colorable exercise of power. Black money and money laundering is being used as a ruse to collect people’s biometrics compulsorily.

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Datar said Qua 139AA and PMLA there is no data provided by State at all as to their effectiveness. They both need to be struck down. No judicial deference necessary.

Datar quoted Ghalib. “Dhool chehre pe thi, aur aina saaf karta raha”, to describe the invocation of black money and terrorism.

Datar said that not a single test of compelling state interest satisfied in Aadhaar. The whole Act is manifestly arbitrary. he said Section 57 should go completely. Anything outside Section 7 is completely violative of the Puttaswamy judgement. Section139AA of the income tax act is inconsistent with the Aadhaar Act. Every 1 of the 9 privacy principles suggested by the Shah Committee of experts flouted by Aadhaar, he said. He reminded the court that this is among the most important cases before SC. 100 crore people are involved.

Datar said the following suggestions were necessary as a minimum:

  1. No Aadhaar for anything outside 7.
  2. Within 7 strict scrutiny of every notification.
  3. Definite choice for opt-out.
  4. Absolutely make it optional for vulnerable groups – manual labourers, farmers, old age persons

Datar said When the government has all the data of all its citizens, the tipping point to the otherside of democracy is extremely nigh and easy. Datar said we constantly talk of Digital India. Digital Indians should not mean the means to achieve that Goal. Datar concluded.

Senior Advocate, P. Chidambaram started his arguments on Money Bill saying that the AG’s reading of “only” in Article 110(g) is erroneous. There is no need to tamper the language of the Article. He refreshed the Court’s memory on various provisions of the Act that do not fall under a to f clauses of 110 (1). Including 3,4, 54 (2)(m) and 57.

Chidambaram said 110 (1)(g)must be read very restrictively. The provision has to be incidental to (a) to (f) to come under (g). Clause (g) is not a substantive provision. If no such provision is shown among a to f, the Act falls.

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Chidambaram said Section 57 travels beyond Article 110 of the Constitution. Clause (g) of 110 (1).

Chidambaram said the reference to judgments of Mohd Saeed Sidiqqui and Yogendra Kumar Jaiswal is not good law and the State has failed to show how Raja Rampal, and Hollohan are not good law and how Mohd Shahid Sidiqqui and Yogeshwar Jaiswal are good law. Implications of non money bill being passed as a money bill are immense and a violation of the basic structure, as it disables one half of the Parliament from exercising its wisdom in a bicameral legislature. It denudes the highest constitutional authority of the country, the President of India.

Chidambaram said that such exercise of power should not be condoned by the Supreme Court. He said that unlike Australian constitution, there was no provision in our Constitution to sever and save an invalidly enacted legislation. He said that the defect of non participation of RS and President under 111 is not cured by severability in any case. He said that it was not the function of the Supreme Court to save legislation that is fundamentally unconstitutional.

Chidambaram said that it was not the case here that the Speaker has not certifiied multiple provisions as money bills or non money bills. The entire bill has been certified and if the certificate is invalid, there is no application of Severability.

Chidambaram said his final point was on Pith and Substance. He said Pith and Substance doctrine cannot be applied in cases where the applicability of Article 110 is being interpreted. It is only limited to entries of legislative lists.

Chidambaram concluded by stating that the Supreme Court does not have to deal with consequence of Act being struck down. Parliament will find that answer. It suffices for the Supreme Court to just declare this Act void. He requested the bench to strike down the Aadhaar Act as it is not a Money Bill. Any other decision will make a mockery of Article in 110.

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Senior Advocate K.V. Viswanathan began his rejoinder by saying that four fundamental errors vitiate the defence by Union (written submissions).

  1. Least Restrictive means is a facet of proportionality. Contrary proposition by Dwivedi is totally incorrect.
  2. Theory of Balancing. No balancing among the bundle of rights of individual. Balancing Right to food and right to privacy is wrong. No fundamental rights will survive if we accept the balancing proposition put forward by the State. There is no evidence by the State of fraud etc. The petitioners have shown how identity fraud is a really a negligible percentage of frauds.
  3. Section 59 doesn’t protect Aadhaar during the time it was not an Act. Its a wrong submission made by the state.
  4. To rely on the exception handling mechanism is ultra vires the Act and UIDAI has no control over such exception handling at all.

Viswanathan read from Salmond on first principles of right and duty while rejoining on section 7 to show all vested rights cannot be conditioned on Aadhaar. He said that the correlative duty was on the State to provide for welfare and that burden cannot be shifted on citizens by subjecting the poor and downtrodden of this country to a “technological menace”.

Viswanathan said All fundamental and statutory rights related services ought to be exempted from mandatory aadhaar at a minimum. He said that there can be no data collection and digitalization of records. The underpinning of the Aadhaar Act is authentication of individuals.

Justice Sikri asked about targeted delivery and the efficiency therefore. Viswanathan said that is only putting people against people. An argument of convenience. It is the state’s duty to have strong internal enforcement mechanisms. The whole burden cannot be shifted to the citizen! He said that the principle of harmonization of rights is being mis-applied by the respondents.

Viswanathan concluded.

Senior advocate, P.V Surendranath began his submissions. He had two submissions:

  1. 2003 12 SCC 738: on excessive delegation.
  2. 2001 6 SCC 301: laying requirements for different delegation provisions cases.

Surendranath concluded.

The AG commented that this is the second longest hearing in the history of the Supreme Court after Keshavananda.

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The Supreme Court reserved Judgment.

The Bench rose.

Summary of hearing based on tweets by Prasanna S, Gautam Bhatia and SFLC.

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.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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