In response to questions from the opposition members in the Rajya Sabha on 10th April, Union Minister for Law & Justice, Ravi Shankar Prasad categorically stated that the Aadhaar Act passed in March 2016 and brought in force in September 2016 effectively supersedes the Supreme Court’s interim orders passed between 2013 and 2015. The Supreme Court orders, the latest of which was passed on 15thOctober, 2015, repeatedly restrained the Central and State Governments, in no uncertain terms, from making Aadhaar a mandatory precondition for any purpose whatsoever, until the constitutional challenge to project, pending before the Supreme Court since 2012, is decided one way or the other. In support of this stand, he stated that the Parliament is the sovereign body insofar as law making is concerned and that there has been a new law that has been passed which has not yet been stayed by any court and that the supreme court’s earlier orders may not operate as a stay on a validly made law i.e. the 2016 Aadhaar Act. He further stated that the 2015 orders of the Supreme Court were made in the context where there was no law regulating the project and with the passage of the Aadhaar Act, that defect stands removed and Court’s orders therefore are no longer necessary to be followed. This is the first time that we know that the government has taken such a stand in Parliament. It is interesting to note that this is at variance with Government’s earlier statements on the issues such as Prasad’s own statement on the issue, where he said the Government will approach the Supreme Court for vacating its orders and that of his junior Minister in the Information Technology Ministry when he implied that the Government was interpreting Section 7 of the Aadhaar act in consonance with the Supreme Court orders.
In my humble but considered view, this stand by the Government is legally untenable and seems to be as a result of it appreciating the full import of neither the orders of the court, nor the express language of the Aadhaar Act.
The primary basis of a court passing an interim order is the pending dispute before it. As long as such a dispute is still pending, the orders would ordinarily hold force. In this case, the petitions are still technically pending before the Constitution Bench of the Court. Even if the Government thinks they have become infructuous, they ought to move an application and persuade the court to declare them to be so. The Government has not moved the Court for such a declaration or dismissal of the petitions or vacation of the orders citing the new law. It must be pointed out that this case is different from instances like the Shah Bano story in which a final judgment of the Court was sought to be undone by an Act of Parliament. In this Aadhaar case, the Central Government is still before the court and is subject to the jurisdiction and specific restraint imposed by the court. If any authority wants to exercise power, (even newly conferred power by legislation) contrary to such restraint, it cannot do so without the permission of the Court.
I am not suggesting that a parliamentary legislation cannot in any case override interim directions of the Supreme Court. For that to happen though, there ought to be an express statement in the objects of the Act as introduced in Parliament or elsewhere during the legislation process that this seeks to undo interim directions of the court; or an implied overruling where it becomes virtually impossible for a person to comply with the later legislation as well as the orders of the Court. In this case though, the Act has neither of these ingredients. While Section 7 confers power on various authorities to insist on Aadhaar enrolment as a mandatory pre-requisite, it does not impose a duty to do so. The authorities therefore can comply with the Act without being in contravention of the orders of the Court, by simply not exercising the powers under Section 7. If any authority is desirous of exercising the newly found power, they can do so – but with the leave of the Court.
Moreover, when the interim orders were passed, the absence of law was not the only issue in consideration. In fact, the Central Government had argued that the Appropriation Act at the time read with Allocation of Business Rules under Article 77 provided the legislative basis for the project and that Information Technology Act (IT Act) and the Rules under IT Act have enough statutory safeguards for data protection; and therefore there was no legislative vacuum under which the project was operating. It is perhaps after making note of this stand of the Government that the first interim order passed in 23rd September 2013, stated that “when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled for it under the law.” In that background, it cannot be stated that this new Act removed any “defect” that was pointed out by the court or which formed the basis of the court’s orders.
The argument that the 2016 Act did not exist before October 2015 and that there is no principle of automatic stay of an Act of parliament that did not exist at the time of passing the order and therefore, October 2015 order would not prohibit authorities from exercising power under Section 7 of the newly enacted Act, seems to be appealing on the face of it. However, a plain unqualified application of that principle leads to absurd results. Assume for one moment, that the 2015 Act did indeed stay the operation of a law – lets call it Act-1. Say Parliament passes another identical Act and lets call it Act-2. Can the Government continue to implement and enforce Act-2 on the ground that there is no automatic stay? Why have constitutional courts at all if legislatures can simply reiterate their earlier position and escape orders of such a court? It must be kept in mind that these interim orders have been passed by a court acting in its capacity as a constitutional court under Article 32 of the Constitution in attempting to provide interim protection to constitutional rights which it prima facie felt were in danger because of the project. The government’s stand that by passing a legislation and doing nothing more, they could effectively overturn the directions, which were passed after the court, before whom the government is still a party, clearly therefore is in dissonance with the constitutional scheme, in which Parliament is not unqualifiedly supreme, but subject to constitutional limitations.
(An earlier version of this article by the same author appeared in : https://aamjanata.com/unlawful-make-aadhaar-mandatory/)
[This is a guest post by Prasanna S, a lawyer who practises in Delhi and has acted for some of the petitioners in the Aadhaar case before the Supreme Court]