Aadhaar Verdict: The Sections under Challenge

January 07, 2019 5:06 PM

The five-judge bench of the Supreme Court handed down its decision on the constitutional validity of the Aadhaar Act/Scheme on 26th September, 2018, in a split verdict.

Aadhaar, Aadhaar Verdict, Supreme Court, constitutional validity of Aadhaar Act, Aadhaar BillThe majority judgment including the concurring opinion by Bhushan J. and dissenting opinion by Chandrachud J. categorically held that Speaker’s decision certifying a bill as a money bill or otherwise under Article 110 of Constitution is not immune from judicial review.

The great American Judge, Charles Evan Hughes, once said, “Dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

The five-judge bench of the Supreme Court handed down its decision on the constitutional validity of the Aadhaar Act/Scheme on 26th September, 2018, in a split verdict, with Justice AK Sikri writing the majority judgment on behalf of himself, Justice Dipak Misra and Justice AM Khanwilkar. Justice Ashok Bhushan wrote a concurring opinion, with Justice Chandrachud being the lone dissenter.

One of the major challenges to the constitutional validity of the Aadhaar Act, was the premise that Aadhaar Act could not have been passed as a ‘money bill’ and the certification of then Aadhaar Bill by Speaker of Lok Sabha as a ‘money bill’ was palpably unconstitutional and was, in fact, a fraud upon the constitution.

The primary questions of law before the Constitutional Bench of Supreme Court while deciding the case, were 1) Whether the Speaker’s decision of certification of a bill as a ‘money bill’ or otherwise is judicially reviewable by a court of law i.e. High Courts and Supreme Court of India; 2) Whether the Aadhaar Bill was rightly certified as a ‘money bill’ under Article 110 of Constitution and in effect, the passage of Aadhaar Act was legitimate or not as per the Constitution of India.

The majority judgment including the concurring opinion by Bhushan J. and dissenting opinion by Chandrachud J. categorically held that Speaker’s decision certifying a bill as a money bill or otherwise under Article 110 of Constitution is not immune from judicial review. Though the majority judgment did not elaborate much, the concurring opinion by Bhushan J. states that three-judge bench decision in Mohd. Saeed Siddiqui and two-judge bench decision in Yogendra Kumar Jaiswal do not lay down the correct law, Chandrachud J. in his judgment notes that the above-mentioned decisions are overruled. It can be safely considered that even majority judgment overruled the conflicting decisions in Siddiqui(supra) and Jaiswal(supra). Thus, the primary question was decided in favour of Petitioners in the matter.

The main point of disagreement among the majority judgment and minority opinion was the issue whether the Aadhaar Bill was rightly certified as a ‘money bill’. The major challenge by the Petitioners was premised on the fact that provisions of Aadhaar Act such as 23 (2)(h), 54 (2)(m) and 57 of The Aadhar (Targeted Delivery Of Financial And Other Subsidies, Benefits And Services) Bill, 2016 and the corresponding Sections 23 (2)(h), 54 (2)(m) and 57 of The Aadhar (Targeted Delivery Of Financial And Other Subsidies, Benefits And Services) Act, 2016 as notified by Government on 26.03.2016 clearly do not fall under any of the clauses of Article 110 of the Constitution. Thus, the act of certifying the Bill as a Money Bill by the Speaker was illegal and violative of Constitutional provisions.

With regard to Section 23(2)(h) and Section 54 (2) (m) the Apex Court read down the provisions and held the use of Aadhaar number for ‘other purposes’ to be incidental to providing or availing of various subsidies, benefits and services. However, Section 57 which provided the ammunition for the private companies to hound the citizenry for their Aadhaar number as well as biometric data was the most controversial provision of the Act. It was this provision which enabled telecom companies, banks, and whole other private players including private hire cars to demand for Aadhaar number for provision of services. The majority judgment in absurd reasoning held Section 7 to be the core provision of Aadhaar Act using the ‘pith and substance doctrine’. Further, it held that Section 57 barring the part which is held ‘unconstitutional’ is also incidental to the main provision Section 7. Section 57 as per majority opinion only enables holder of Aadhaar number to use it for other purposes.

(By Saurabh Bindal and R.V Prabhat. Both are lawyers practicing in Delhi)

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