SC Constitution Bench on Aadhaar – Final Hearing (Day XV)

By Arpita Biswas

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Senior Counsel Arvind Datar commenced the day’s argument by commenting on the contradictory nature of the consent form under the PML Act, since the Act mandates the use of Aadhaar otherwise.

He then went on to discuss the validity of a money bill. He referred to debates and discussions in the Parliament, stating that Section 57 of the Aadhaar Act was meant to be struck down at certain points. He stated that as per the Puttaswamy judgment, Section 57 would also not stand since it vitiated personal autonomy.

Further on Section 57, he commented on the use of an ‘Aadhaar number for establishing the identity of an individual…or any contract to this effect’ and questioned what the nature of such a contract would be.

Referring to the ‘private parties’ aspect of Section 57, Justice Chandrachud questioned what kind of a compelling state interest could make private parties ask for Aadhaar numbers.

Mr. Datar also discussed the matter of excessive delegation under Section 56 of the Act stating that ‘any law’ referred to primary legislation.

He then went on to discuss cases of exclusion caused by Section 7 of the Aadhaar Act. He also reiterated the point that there were divisions being made which were manifestly arbitrary.

Mr. Datar then discussed the requirement of furnishing Aadhaar for NEET, AIBE and CBSE exams – the last date for which is the 9th of March, 2018. The discussion then moved on to the interim orders passed prior to the Aadhaar Act being enacted and the validity of linking Aadhaar with services other than the 6 services mentioned in the 2015 order.

The Attorney General stated that interim orders would be ‘wiped off’ when the Aadhaar Act came into force and that the orders were only valid in a time period when there was no statute.

Justice Chandrachud questioned whether the government would be bound by the interim order passed on the 15th October 2015.

Justice Bhushan questioned what impact the law would have had on the validity of the orders since the orders were not passed due to the absence of a law.

The Attorney General remarked on the fact that there were a large number of impersonations which the Aadhaar Act was meant to fix.

Justice Chandrachud and Justice Bhushan stated that Aadhaar could still be voluntary in nature.

The discussion then moved on to the March 31st deadline for linking Aadhaar with bank accounts, the petitioners asked for an extension to be granted at the earliest.

Justice Chandrachud further stated that such a decision should be taken up at the earliest, since entire financial markets needed to know what was to be done and such a decision could not be made closer to the 31st of March.

Senior Counsel P.C. Chidambaram commenced his arguments. His arguments focussed on the validity of the money bill.

He stated that the Aadhaar bill could not have been passed as a money bill and that the Rajya Sabha should have had the opportunity to scrutinize the bill. He questioned how a legislation could bypass scrutiny by the Rajya Sabha in a bicameral legislature.

He then went on to discuss Article 107, 117 and 110 of the Constitution.

He stated that Article 107 gave the Rajya Sabha parity with the Lok Sabha.

He then went on to discuss Article 117 and financial bills.

He then read out Article 110 of the Constitution, which lists out the definition of money bills.

He then detailed the difference between financial bills and money bills, stating that a financial bill can make provisions for matters listed under Article 110(a) – (f) in addition to other matters however, money bills can only make provisions for matters listed under Article 110(a)-(f).

He then detailed his first submission, which was that the Aadhaar Act should not have ‘escaped’ under the guise of a money bill.  For his second submission, he referred to the difference between the money bill and the financial bill mentioned above.

Mr. Chidambaram then went on to discuss the substantive difference between Article 107 and 110, stating that the word ‘only’ was the differentiator.  He stated that ‘only’ was a word of exclusion and intended to leave out anything that was alien.

He went on to refer to interpretations of Article 74(2) and 71(1) stating that in these provisions the jurisdiction of the judiciary was clearly excluded, and the same would follow in the given instance.

While referring to the scope of Article 110(3), he discussed Article 103(1) and the disqualification of election commission members. He stated that while clause (1) stated that all questions would be resolved by the President of India, it was understood to be a decision of the Election Commission and a similar interpretation could apply to Article 110(3).

Lastly, an interim order was passed today which allowed forms of identification other than Aadhaar to be used, and thereby made Aadhaar non-mandatory for NEET, AIBE and CBSE exams.

The next hearing is scheduled for the 13th of March, 2018.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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