Justice DY Chandrachud's dissenting opinion in Aadhaar judgment raises very valid points about parliamentary process

"Technology and biometrics are recent entrants to litigation. Individually, each presents specific claims: of technology as the great enabler; and of biometrics the unique identifier. As recombinant elements, they create as it were, new genetic material. Combined together, they present unforeseen challenges for governance in a digital age."

Thus observed Justice DY Chandrachud, the sole dissenting voice on the five-judge bench hearing Writ Petition (Civil) No 494 of 2012 in the matter of Justice KS Puttaswamy (Retd) and Another versus Union of India and Others, better known as the Aadhaar case.

Very few cases have caught the eye of the entire nation as has the case involving the constitutionality of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (hereinafter, the ‘Aadhaar Act’). While the Aadhaar Act was only passed by Parliament in 2016, the legality surrounding the world’s largest unique identification number providing exercise for citizens based on their biometrics has been questioned right from its inception in 2009.

There have been those who have questioned the need for the Aadhaar card, while others have toed the official line stating that the unique identification number provided by the UIDAI would help the Government of India reach every citizen of India with subsidies and other aid.

If you are someone who has been annoyed by the constant barrages of text messages by your bank (including their credit card executives), your cellular phone operator, and even your internet service provider, then I can safely assume that you have been following the case of Aadhaar. If I may go even a step further, I can safely assume that unless someone has been living under a rock for the past several months, you may, at some point, have read either the submissions for the Aadhaar, or against it.

Representational image. AFP

Representational image. AFP

At 1,448 pages, the Aadhaar judgment is a virtual goldmine and analysing each portion of the judgment will reveal how it will affect India's citizens right from protection of privacy (to be read with Justice KS Puttaswamy versus Union of India, ie the Privacy Judgment).

While commentators in general are celebrating the verdict and the reading down and striking down of certain sections of the Aadhaar Act, what very few are talking about are the scathing remarks by Justice Chandrachud where he lambasts the passage of the Aadhaar Act under the guise of a Money Bill, while the majority bench seems to have agreed with the explanation tendered for such passage.

Not mincing his words, Justice Chandrachud spared no one when he wrote in his dissenting judgment, "Introducing the Aadhaar Act as a Money Bill deprived the Rajya Sabha of its power to reject or amend the Bill… Introducing the Aadhaar Act as a Money Bill has bypassed the constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act as a Money Bill is an abuse of the constitutional process. It deprived the Rajya Sabha from altering provisions of the bill by carrying out amendments."

In his judgment, Justice Chandrachud went on to hold, contrary to the view of his brother judges including the Chief Justice of India, that the Aadhaar Act in its entirety was unconstitutional inasmuch as the way in which it was passed. Applying the doctrine of pith and substance, and in great detail analysing how a Money Bill ought to be passed, Justice Chandrachud ruled that the Aadhaar Act is declared unconstitutional for failing to meet the necessary requirements to have been certified as a Money Bill under Article 110(1). However, this ruling presently will have no effect since the majority bench have ruled that the Aadhaar Act has passed the constitutionality test (some portions of it, however, have been declared unconstitutional, whereas others were read down).

It is submitted with the utmost respect to the judgment of the majority bench that the view taken by Justice Chandrachud is a very astute one.

It does not matter which political party wields power, the Constitution of India reigns supreme and no political mandate, irrespective of how strong it may be, can change it. This has been further written in stone thanks to Kesavananda Bharati versus State of Kerala by which we have today what we call the 'Basic Structure Doctrine'.

It is exactly owing to this that despite having absolute majority in the past, when governments tried to violate the provisions of the Constitution of India, the courts in India had to step in to ensure that there was no abuse of constitutional process.

Justice Chandrachud's dissenting judgment causes one to wonder if he expected the apex court to stand up once again to ensure that there was, in his words, no "abuse of constitutional process".

It will not be out of place to further quote Justice Chandrachud here: "Our Constitution does not provide absolute power to any institution. It sets the limits for each institution. Our constitutional scheme envisages a system of checks and balances."

Once more, even: "Our law must recognise the need to liberate its founding principles from its colonial past. The Court should not readily accept the notion that the authority vested in a constitutional functionary is immune from judicial review.”

It is essential to note the fact that Justice Chandrachud found the entire Aadhaar Act to be unconstitutional, and not just portions thereof (Part L Paragraph 3). This judgment was reached because of the way in which the bill was introduced, through which the power of the Rajya Sabha to amend the bill was taken away.

A quick recap of the Indian parliamentary process would remind us that in the case of a Money Bill, the Rajya Sabha has no amending power, but merely power to recommend changes, which are not even binding on the Lok Sabha. In other words, any change that the Rajya Sabha wishes to seek in the bill can be rejected in its entirety by the Lok Sabha.

Where I see a problem with the passage of the Aadhaar Act is thus: Any party that has an absolute majority in the Lok Sabha may, at its instance, and in order to defeat the checks and balances to be brought in by the Rajya Sabha may use a similar operating mechanism to pass bills into legislation. Whether these stand the test of judicial review is a question for a later date, but the fact remains that this is a possibility that may take place.

The reasoning given by the UIDAI and the Government of India for passing the Aadhaar Act as a Money Bill was to ensure, among others, targeted delivery of subsidies, benefits and services, which the majority agreed with and also agreed with the submissions of the Attorney-General of India that Section 7 of the Aadhaar Act was indeed the core provision that satisfied the conditions for passage of a Money Bill under Article 110(1).

Justice Chandrachud felt differently.

The Aadhaar judgment is a potential goldmine for those seeking to understand privacy and data protection laws in India.

The Aadhaar judgment has, at least for now, ensured that the pet project of two successive governments, has found sanctity in law.

One thing is for certain. The Aadhaar judgment has left us with unique questions that would require really unique answers. Until these are answered, like me, you can safely ignore all those pesky text messages serving as a ‘reminder’ to link your bank account details and your cellular phone number to Aadhaar.

The writer is an advocate in the Bombay High Court


Updated Date: Sep 28, 2018 17:19 PM

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