SC Constitution Bench on Aadhaar – Final Hearing (Day XVI) (Part – I)

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. The arguments advanced on Day 16 have been divided into two posts, the second post can be found here.

Senior Counsel Arvind Datar briefly addressed the issue of Aadhaar numbers required for issuing passports, despite the courts assurance against the same. The Chief Justice stated that this matter would be addressed later in the day.

Senior Counsel P. Chidambaram continued his arguments from the previous week, starting off with the 3^rd proposition of his submission.

He reiterated that as per Article 110(3) of the Constitution, the speaker’s decision would not be final and would be subject to judicial review.

On the scope of judicial review, he referred to the judgment Sub-committee on Judicial Accountability vs. Union of India (1991 SC 699). He read out excerpts relating to judicial review on matters of procedural law and substantive law. One of the excerpts was as follows:

“The principles in Bradlaugh is that even a statutory right if it is related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament’s own concern. But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the Parliamentary procedure. Even in matters of procedure the constitutional provisions are binding as the legislations are enforceable. Of the interpretation of the Constitution and as to what law is the Courts have the constitutional duty to say what the law is. The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws. Indeed, the learned Attorney General submitted that the question whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclusively for the courts to decide.”

He then proceeded to read out excerpts from S.R. Bommai vs. Union of India (1994 3 SCC 1).

He referred to the ‘finality clause’, stating that inspite of the President’s decision being considered the final in instances of emergency being declared, such decisions were to be subject to judicial review. He also referred to certain ‘widest possible phrases’ that were discussed in this case, specifically – ‘final’, ‘conclusive’, ‘shall not be questioned in any court on any ground’.

Mr. Chidambaram then stated that it would be an inexcusable error if any bill was passed as a money bill as this would deprive the Rajya Sabha of its right to review, which could also amount to a constitutional violation. He also stated that this would strike at federalism, which is a basic feature of the constitution.

He then went on to discuss a 2007 case Raja Ram Pal vs. Speaker, Lok Sabha (2007 3 SCC 184). Referring to excerpts, he stated that procedural illegality cannot be a ground for judicial review, but substantive illegality can.

Further on the point of judicial review, he also stated that there was a breach of constitutional privilege and that the Court could not be restricted in this manner. He also stated that the Parliament was not a body affiliated with the Courts.

Mr. Chidambaram then went on to refer to Article 122 of the Constitution.

He then referred to a case titled Saeed Siddiqui vs. State of Uttar Pradesh (2010 4 SCC 1)

In this case, the U.P. Lokayakta and U.P. Lokayuktas (Amendment) Act, 2012 was passed as a money bill.  He read out the following excerpts from the case:

“Among all the contentions/issues raised, the main challenge relates to the validity of U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 2012. In order to consider the claim of both the parties, it is useful to refer the relevant provisions. The State of U.P. has brought an Act called the U.P. Lokayukta and Up-Lokayuktas Act, 1975 (U.P. Act 42 of 1975)…

…The main apprehension of the petitioner is that the Bill that led to the enactment of the Amendment Act was passed as a Money Bill in violation of Articles 197 and 198 of the Constitution of India which should have been passed by both the Houses, viz., U.P. Legislative Assembly and U.P. Legislative Council and was wrongly passed only by the U.P. Legislative Assembly. During the course of hearing, Mr. Desai, learned senior counsel appearing for the State of U.P., placed the original records pertaining to the proceedings of the Legislative Assembly, decision of the Speaker as well as the Governor, which we are going to discuss in the later part of our judgment…

…Further, Article 212 precludes the Courts from interfering with the presentation of a Bill for assent to the Governor on the ground of non-compliance with the procedure for passing Bills, or from otherwise questioning the Bills passed by the House. To put it clear, proceedings inside the Legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. This is also evident from Article 194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof…

…34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue ofArticle 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs. Hon’ble Speaker Lok Sabha and Others (2007) 3 SCC 184, it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.

35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be… 

…Besides, the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending in the State Legislature and before it becomes an Act. It is brought to our notice that in the instant case no such question was ever raised by anyone…

…In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963 SC 589, the Constitution Benches of this Court held that (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.”

 It was held in this case that the decision of the speaker on the validity of a money bill was final, however, Mr. Chidambaram stated that this case does not substantively discuss why a money bill was implemented in the given case or why the amendment Act was passed as a money bill.

He then went on to discuss the case of Mangalore Ganesh Beedi Works vs. Union of India (1974 SCR (3) 221).

The discussion then moved on to ‘procedure’ under Article 199 and 212.

Mr. Chidambaram stated that Article 212 seems to make it possible for the citizen in the appropriate court of law to challenge the validity of proceedings, not from mere irregularity but illegality as well.

He then went on to discuss a 2016 case regarding the Orissa Special Courts Act, which was passed as a money bill. He referred to relevant excerpts which distinguished between regularity and irregularity.

He stated that procedural irregularity stood in stark contrast to substantive illegality.

He reiterated his proposition, stating that Article 199(3) does not bar the court from judicial review of whether a bill is a money bill.

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