Review pleas pending, 7-judge bench not formed — Aadhaar Act validity case languishes in SC

Aadhaar Act was ruled constitutional in 2018, after the 2nd-longest hearing in SC history. However, in 2019, a 5-judge bench expressed doubts about the verdict approving its passage as a Money Bill.

File image of an Aadhaar card | Photo: Dhiraj Singh | Bloomberg

New Delhi: More than two years since the Supreme Court upheld the Aadhaar Act as constitutional, the law’s validity is still not set in stone.

Launched in 2009, Aadhaar was marketed as the world’s biggest biometric programme, managed by the Unique Identification Authority of India (UIDAI). It was touted as a solution for better delivery of social welfare schemes and subsidy programmes.

The scheme, which was originally introduced through an executive notification, was first challenged in the Supreme Court in 2012. In 2016, the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act was notified.

Since then, the case — which recorded the second-longest hearing in the Supreme Court’s history — has seen two landmark judgments: One on the right to privacy in August 2017 and another on the constitutional validity of the Aadhaar scheme itself in September 2018.

In its September 2018 judgment, a five-judge bench had ruled that Parliament was competent to pass the 2016 Act as a Money Bill under Article 110 of the Constitution. Several review petitions were filed against the verdict in December 2018, challenging, among other things, the judgment’s take on classification of the Aadhaar Bill as a Money Bill. These review petitions have been taken up by the bench in chambers only once in two years, and remain pending.

Then, in November 2019, another five-judge bench, hearing an unrelated case, raised doubts on the correctness of the 2018 verdict, and made a request to set up a seven-judge bench to re-examine the validity of the Aadhaar law’s passage as a Money Bill. But so far, the seven-judge bench has not even been set up yet.

2nd-longest hearing in SC’s history

The first petition challenging Aadhaar was filed by retired Karnataka High Court judge K.S. Puttaswamy. Among other things, he had asserted that Aadhaar violates the fundamental right to privacy.

A nine-judge bench was set up to examine the correctness of Supreme Court judgments on right to privacy. In a historic decision in August 2017, the nine judges unanimously recognised the fundamental right to privacy of every individual, guaranteed by the Constitution within Article 21.

Arguments on the constitutional validity of Aadhaar were then taken up and heard over a period of 38 days — making it the second-longest hearing in the history of the Supreme Court, after the Kesavananda Bharati case.

The arguments were made before a bench comprising then-Chief Justice of India Dipak Misra, along with justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan. The bench delivered its judgment in September 2018 with a 4:1 majority, upholding the 2016 Act as constitutional, but striking down some of its provisions.

Justice Sikri wrote the majority opinion, on behalf of CJI Misra, Justice Khanwilkar and himself. Justice Bhushan wrote a concurring opinion and Justice Chandrachud dissented.

‘Unique makes you the only one’

The 567-page 2018 judgment began with the line: “It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one.”

It went on to say: “‘Unique makes you the only one’ is the central message of Aadhaar, which is on the altar facing constitutional challenge in these petitions.”

It went on to explain that ‘Aadhaar’ translates to ‘foundation’ or ‘base’ in English.

The majority opinion then upheld the constitutional validity of the Aadhaar Act, while striking down certain provisions as unconstitutional.

Crucially, the judgment upheld Section 7 of the Act, which made Aadhaar mandatory for availing of state subsidies, benefits and services. It, however, held that Aadhaar could not be made mandatory by educational bodies like the CBSE and the UGC, or even the NEET, as they are neither services nor benefits offered by the state. It also said Aadhaar could not be made mandatory for children under the Sarva Shiksha Scheme, as elementary education is not a state benefit but an entitlement.

The verdict upheld Section 139AA of the Income Tax Act, 1961, that makes it mandatory to quote one’s Aadhaar ID when filing tax returns or for allotment of Permanent Account Number. But it said that making Aadhaar mandatory to open a bank account or maintain an existing account violates the right to privacy.

The circular mandating linking Aadhaar with a mobile number was also declared illegal and unconstitutional.

Seven review petitions

Following the verdict, seven parties filed review petitions, asking the court to reverse its decision and strike down the Aadhaar Act. The first of these petitions was filed in December 2018.

The petitioners contend that the 2018 judgment suffers from “errors apparent on the face of the record”. They also contend that the September 2018 judgment had wrongly accepted passage of Aadhaar Act as a Money Bill.

Review petitions are ordinarily entertained without oral arguments by lawyers. They are heard “through circulation” by the judges in their chambers. Review petitions are also heard, as far as practicable, by the same combination of judges who delivered the order or judgment that is sought to be reviewed.

A bench comprising Chief Justice S.A. Bobde and Justices A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan and L. Nageswara Rao was scheduled to hear the review in chambers on 9 June 2020. But the court adjourned the closed-door hearing on 8 June.

It was then listed on 25 August, but the order simply said “not taken up”. This was before a bench comprising Justices Arun Mishra, Khanwilkar, Chandrachud, Bhushan and Rao.

The Supreme Court website also shows that the case was listed for 15 December 2020. However, no order or office report is available for that date.

Money Bill controversy and the importance of ‘only’

In November 2019, a five-judge Constitution bench of the Supreme Court, in the Roger Mathew case, expressed doubts over the correctness of the 2018 verdict, and referred the question to a seven-judge bench.

This five-judge bench was hearing a constitutional challenge to Part XIV of the Finance Act, 2017, pertaining to the structure and organisation of tribunals. Like the Aadhaar Act, the amended Finance Act, 2017, too, had been passed as a Money Bill.

One of the core questions in the Roger Mathew case was whether Part XIV could have been passed as a Money Bill. Both petitioners and respondents had relied on the 2018 Aadhaar judgment to buttress their arguments.

According to Article 110(1) of the Constitution, a Money Bill is one which deals “only” with matters specified in Article 110 (1) (a) to (g) — taxation, borrowing by the government and appropriation of money from the Consolidated Fund of India, among others. A Money Bill can only be introduced in the Lok Sabha and does not need the consent of the Rajya Sabha.

Clause 3 of Article 110 says that in case “any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final”.

In the Aadhaar judgment, the majority opinion had ruled that the Speaker’s decision will be subject to judicial scrutiny, that is, it will be open for a court to look into the correctness of the Speaker’s decision. The Roger Mathew judgment also arrived at the same conclusion.

However, the Roger Mathew judgment opined that the majority judgment in the Aadhaar case “did not substantially discuss the effect of the word ‘only’ in Article 110(1)”, and offered “little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a ‘Money Bill’ do not conform to Article 110(1)(a) to (g)”.

It said that the Aadhaar bench had failed to first delineate the scope of Article 110(1) before ruling that Aadhaar was correctly passed as a Money Bill.

In his dissenting opinion in the Aadhaar case, Justice Chandrachud had referred to the use of the word “only” in Article 110(1), and had ruled that for a Bill to be a Money Bill, it must only contain such provisions that pertain to matters set out under Article 110(1) clauses (a)-(g) of the Constitution. He had then referred to the provisions of the Aadhaar Act, and concluded that the aspects covered by the law do not lie within the scope of Article 110.

Justice Chandrachud was also part of the bench that delivered the Roger Mathew judgment.

Since both the cases were heard by five-judge benches, the court directed the matters to be placed before the Chief Justice of India, on the administrative side, so that the issue can be referred to a larger bench.

But this larger bench has not been constituted so far, leaving the future of the 2016 Act in limbo.

Why delay is an issue in such cases

Apar Gupta, executive director of the Internet Freedom Foundation, a Delhi-based NGO, explained why delays are an issue in such cases.

“These matters also come with timeliness. For instance, the Money Bill issue is towards safeguarding the rights of the upper house of Parliament, which is essentially about the federal character. So, if it is not determined and decided within that context, its value over a period of time gets impacted,” Gupta told ThePrint.

“The second learning that has come through, through the right to privacy and the Aadhaar litigation, is that when you’re challenging a central executive authority, and it perpetuates a certain practice over a period of time, if there is no check over it by a constitutional judgment, then it becomes very difficult to correct it, because by then it has already seeped within a culture of actual action. So you can’t go to the status quo ante,” he added.