Updates on Aadhaar Final Hearing: Day 16

On day 16 of the final Aadhaar hearing, Senior Advocate P. Chidambaram continued his arguments from the previous day, stating that the Lok Sabha speaker’s decision is not final, and is subject to judicial review. He read out relevant excerpts from the decision in Sub-committee on Judicial Accountability vs. Union of India [(1991) 4 SCC 699] on the scope of judicial review. He cited the decision in S.R Bommai v. Union of India [(1994) 3 SCC 1], quoting para 90: “The satisfaction of the President mentioned in clause (1), shall be final and conclusive and shall not be questioned in any court on any ground.”

Mr. Chidambaram submitted that any bill passed in the guise of money bill strikes at the basic feature of the Constitution.

Further, citing Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC 184], he stated that though the validity of any proceeding in the Parliament on the ground of irregularity of procedure cannot be looked into by the court, illegality of procedure can be a ground for the courts to exercise judicial review. He then referred to the case of Mohd. Saeed Siddiqui v. State of U.P. [(2010) 4 SCC 1], wherein Uttar Pradesh Lokayukta and up-Lokayukta (Amendment) Act, 2012, was passed as a money bill. In this case, it was argued that the Bill was passed only by the Legislative Assembly and not by both the houses, thus it was bad in law. The court, however, held that the decision of the Speaker, classifying it to be a money bill, is final and the said decision cannot be disputed. However, Mr. Chidambaram stated that the said decision did not delve into the substantive discussions as to why the impunged Act was declared to be a money bill.

On being asked to read out some excerpts from the case of Mangalore Ganesh Beedi Works v. State of Mysore [AIR 1963 SC 589], Mr. Chidambaram responded by saying that the instead of having a substantive discussion, the said case only makes a conclusion that the validity of the Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202 of the Constitution.

Mr. Chidambaram then moved on to the judgment in Pandit M.S.M Sharma v. Sri Krishna Sinha that if the procedure adopted by the Parliament is illegal and unconstitutional, it will be open to scrutiny in a court of law.

Moving on to his fourth submission, Mr. Chidambaram’s submitted that the upper house in a bicameral legislature cannot be bypassed as it plays an important role in a federal Constitution. He further cited the decision of Kuldip Nayar v. Union of India [(2006) 7 SCC 1], highlighting the significance of Rajya Sabha and its importance in a federal structure of governance.

Mr. Chidambaram further carried on with his submission on the money bill and elucidated the history of money bill and emphasized the restricted domain which constitutes a money bill. He also referred to the Constitution of Ireland and the definition of money bill contained therein to highlight the restrictive nature of money bill.

Mr. Chidambaram then moved on to the debates in Rajya Sabja on Aadhaar bill. He stated that questions with respect to the status of Aadhaar bill as money bill were raised by several Members of the Parliament. He further stated that the petitioner Jairam Ramesh had moved for amendments in the bill which were adopted in Rajya Sabha. However, the Lok Sabha did not consider these amendments and passed the bill in original. Reading the Preamble and the Long Title, Mr. Chidambaram emphasized that the apparent object of the Aadhaar bill was to enact a law which could fit into the requirements under Article 110(1)(c) and (g). Thereafter, he read out section 23(2)(h) of the Act and said that assuming the Act’s purpose was to provide benefits, words “and other purposes” were introduced insidiously in the provision. Further “other purposes” has not been defined anywhere in the Act. He further pointed out a similar example in section 54(2)(m).

At this point, Justice Chandrachud questioned that looking beyond the threshold of justiciability, what were the provisions that were relatable to Article 110. Mr. Chidambaram responded by saying that the question should be whether there is any provision in the Act that does not fall under Article 110(1)(a) to (g). He contended that provisions such as sections 57, 54, 23 go beyond the scope of Article 110, making the bill a financial bill and not a money bill. Justice Chandrachud further asked whether the bill in its entirety had to go or could there be severity of portions not falling under Article 110. Mr. Chidambaram answered that the bill would have to go in its entirety as the provisions are not severable.

Reading out the relevant provisions of the Australian Constitution on money bill, he submitted that Article 55 of Australian Constitution specifically states that in case of a money bill, laws will have provisions relating ‘only’ to money bill and provisions relating to any other matter will have no effect.

He added that in the present case, the provisions make it clear that it was not a money bill, and therefore, it could not have passed the scrutiny of the Rajya Sabha. He further remarked that if this bill could slip through as a money bill, then virtually any bill could in the future. He emphasised that this sets a dangerous precedent as money bill is an extremely narrow subset of financial bill.

Mr. Chidambaram concluded his pleadings by again emphasizing that the Aadhaar bill goes far beyond the intended purpose of delivery of subsidies and is not a money bill.

Senior Advocate K.V. Vishwanathan commenced his arguments, appearing on behalf of petitioners in W.P.(C) No. 1056/2017 and 833/2013. He presented three pertinent submissions:

  1. Collection, storage and use of data which resulted in invasion of privacy;

  2. On validity of Section 59 and;

  3. On exclusionary aspect of Section 7.

Mr. Vishwanathan remarked that the Act was drafted on the assumption that privacy is not a fundamental right, and that Section 59 has to be declared unconstitutional for violating Articles 14 and 21.

At this point, Senior Advocate Arvind Datar intervened and stated that Aadhaar has been made mandatory for obtaining a passport under the Tatkal scheme, which is in violation of Supreme Court’s previous order. He further requested the court to consider extending the deadline for linking Aadhaar. Attorney General K.K. Venugopal retorted that there were other IDs as well that could be used, and the purpose of Aadhaar is only to expedite the process. He said that in case of passport under Tatkal scheme, Aadhaar is required for out of turn consideration of application to expedite the process. He also mentioned that the respondents were strictly adhering to previous Supreme Court orders.

Post the arguments, the bench passed an interim order directing that the order passed on 15th December, 2017 extending the deadlines for linking of Aadhaar stands extended till the final disposal of the matter, and the extension would also apply to passports. However, the extension of deadline does not apply to ‘benefits, subsidies and services’ under Section 7 of the Act.

The hearing will continue on Wednesday, 14th March, 2018.

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