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

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 first post can be found here.

Mr. Chidambaram continued with his arguments. He went on to discuss the concept of money bills in other jurisdictions, stating that it was meant for tax and debt related purposes.

He stated that the objective of the Act had to be within the confines of Article 110(3).

He proceeded to read out excerpts related to the consolidated fund and other related excerpts from the submissions.

Further, he stated that the law imposing GST was introduced by a money bill, which was appropriate since it was a tax bill.

Mr. Chidambaram stated that not all instances of appropriation of money would validate the use of a money bill.

He then went through provisions of the Aadhaar Act, namely, Section 7, 8(4), 23(2)(h) and 54(2)(m).

He moved on to discussing the ‘most questionable section’ of the Aadhaar Act – Section 57.

Mr. Chidambaram reiterated that if a money bill could only be passed on issues related to Article 110 (3) (a) – (f), and that anything that fell outside the purview of those provisions would be a financial bill.

He then questioned whether any provision of the Aadhaar Act fell squarely within provisions (a) – (g), stating that Section 57 certainly did not and that Sections 23(2)(h) and 54(2)(m) also do not fall within the scope of these provisions.

He further stated that even if the assumption was in favour of the government, assuming that ‘subsidies, benefits and services’ was the objective of the bill, Section 57 would introduce ambiguity and exclude the bill from the purview of a money bill. He stated that currently, the bill was beyond the scope of (a)-(g).

Justice Chandrachud raised a question about the validity of the Act, questioning if the Act could be saved if only a certain portion was introduced as a money bill, and certain portions were not. He stated that perhaps there were some portions which were related to Article 110(3) and could be saved.

Mr. Chidambaram responded, stating that this was out of question as the bill was not severable.

He went on to read out relevant portions of the Australian Constitution, specifically Articles 53, 54 and 55. He specified that if a money bill imposes a tax, it should only deal with such taxation to qualify as a money bill.

Justice Chandrachud further questioned whether the doctrine of severability would apply to the statute.

Mr. Chidambaram stated that by introducing these provisions the right of the Rajya Sabha to review had been taken away.

He stated that even assuming that ‘subsidies, benefits and services’ would come under the purview of Article 110, the afore-mentioned 3 provisions would render it outside the scope of a money bill.

Justice Chandrachud concluded that if the 3 afore-mentioned provisions were not included, the Rajya Sabha could have made amendments.

Mr. Chidambaram further stated that if this bill could slip through as a money bill, anything could pass through as a money bill. He stated that a money bill was a narrow subset of the financial bill and would have far reaching consequences if implemented incorrectly.

Mr. Chidambaram concluded his arguments and Mr. K.V. Viswanathan commenced his arguments.

Mr. Viswanathan laid out his submissions. His first submission related to the validity of Aadhaar, he stated that it construed an invasion of Article 14, 21 and the fundamental right to privacy.

Next, he stated that the three subheads relating to the ‘collection, storage and use’ of data invalidated privacy as well.

Further, he stated that Section 59 of the Aadhaar Act fell short of being a validation clause and questioned its validity.

He also addressed the ‘exclusionary aspect’ of Section 7.

He also stated that the Act lacked a purpose limitation, stating that it did not set out a purpose for data collection. He further stated that the promise that an Act will be reasonably administered would not be enough to pass muster.

Lastly, Mr. Datar revisited the issue on Aadhaar numbers being required for issuing passports, stating that this was in contravention of the Supreme Court’s orders. The Attorney General stated that Aadhaar was only required for expediting the issuance of tatkal passports and was not required otherwise.

On this matter, and all other matters related to Aadhaar linking, with the exception of ‘benefits, subsidies and services’ under Section 7, the deadline for linking stands extended indefinitely. The Supreme Court’s order detailing the same can be found here.

The hearing will continue on the 14^th of March, 2018.

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