[Aadhaar] Indian Supreme Court Reserves Verdict On The Second-longest Hearing After 38 Days

Supreme Court of India has concluded the 38 days long hearing in the petitions challenging the constitutional validity of  Aadhaar (Targeted Delivery of Financial and Other. Subsidies, Benefits and Services) Act, 2016.  The hearing started before the Constitution Bench of CJI Dipak Misra and Justices AK Sikri,AM Khanwikar, Dy Chandrachud and Ashok Bhushn on January 17,2018.

“This has been the longest hearing before the apex court, second only to the hearing in the Kesavananda Bharti case”, remarked Attorney General K. K. Venugopal on Thursday.

The following are the excerpts from the Aadhaar final hearing as it transpired on the ultimate day-

Senior Counsel Gopal Subramanium, advancing rejoinder arguments, pressed for the Act to be struck down, for all demographic and bio metric data gathered so far to be destroyed and for compensation to be paid for starvation deaths and other injuries imputable to the denial of rightful entitlement.

When Justice Sikri quizzed him about the mechanism of deduplication and the consequent plugging of leakages in welfare schemes, he responded, “the stated purpose of the law has not been achieved...it has not been depicted that the 144 notifications issued under section 7 (of the Aadhaar Act) have secured accessibility of ‘Subsidies, Benefits and Services’ to the targeted individuals...on the contrary, there are instances if exclusion...the mere claim of a legitimate aim is not sufficient...”

When Justice Chandrachud inquired if the entitlements to which section 7 applies are in the nature of largesse or of right, the Senior Counsel replied that they are a matter of right. He proceeded to remark that contrary to the spirit of the 1983 judgement in Bandhua Mukti Morcha v. UOI, the Scheme for Rehabilitation of Bonded Labour has been made subject on Aadhaar.

Further, when Justice Chandrachud asked about the parameters that govern the decision to issue a notification under section 7, Mr. Subramanium submitted that considering the notifications are as many as 144, there is no examination of proportionality or legitimate state interests prior to issuing one to impose a condition on a Fundamental Right.

Indicating the judgment in Kalpana Mehta v. UOI, pronounced by the same five judge bench on Wednesday, ruling that placing reliance on Parliamentary Standing Committee Reports in Court Proceedings does not violate parliamentary privileges, he advanced that the year 2011 Report of the Standing Committee on Finance, expressing dissatisfaction with ‘The National Identification Authority of India Bill, 2010’, the draft Aadhaar bill, assumes even more significance.

In his turn, Senior Advocate Arvind Datar urged for, at the very least, the mandate of Aadhaar to be confined to section 7 and for a stringent examination of notifications issued thereunder; for the Aadhaar to be made optional for such categories of persons as manual labourers and the old aged; and for a provision for opting-out.

He expressed his disagreement with the claims of the efficacy of the linkage of PAN cards and bank accounts with Aadhaar under section 139AA of the Income Tax Act and the Prevention of Money Laundering Act in tackling issues of black money and terrorism, as advanced by the State.

In context of the introduction of the Aadhaar Act as a Money Bill, He cited the judgment in Kihoto Hollohan v. Zachillhu (1992), whereunder it was held, “The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of ‘irregularity of procedure’”.

Paragraph 6 of the Tenth Schedule deals with the power of the Speaker or the Chairman, as the case may be, to decide on the disputed disqualification of a member of the Parliament.

Advancing that Aadhaar Act could at best be a financial bill, he suggested that the judgment in Mohd. Saeed Siddiqui v. State of UP (2014), wherein the apex court rejected the challenge that the UP Lokayukta and Up-Lokayukta (Amendment) Act of 2012 was wrongly introduced as a Money Bill in clear disregard to the provisions of Article 199 of the Constitution, holding that the Speaker’s decision is final, as well as the judgment in Yogendra Kumar Jaiswal (2015) may be overruled.

Building on the argument against the Aadhaar Act being a Money Bill, Senior Counsel P. Chidambaram disputed the interpretation accorded by the AG to the term “only” as used in Article 110(1). The AG had sought to submit that clause (1) of the Article intends the matters mentioned in its sub-clauses (a) to (g) to only be contained in a Money Bill.

He submitted that sub-clause (g) must be interpreted strictly and that the State has not depicted how such provisions as sections 54(2)(m) and 57 are related to the matters in sub-clauses (a) to (g).

He also advanced that The exclusion of the role of the Rajya Sabha and the President, as envisaged under Article 111, cannot ameliorated be applying the doctrine of severability.

The submissions of Senior Counsel K. V. Vishwanathan were centred on contesting the Respondents’ arguments on five counts – first, the Respondent’s invocation of the “reasonable expectation of privacy” test to argue that there is no infringement at all is incorrect; second, the “balancing” metaphor is not the correct standard for adjudging rights’ violations; third, the State has failed to discharge its burden of proving the additional benefits of alleged subsidy savings; fourth, instead of ensuring inclusion, Aadhaar is inherently exclusionary and creates an undue burden upon the exercise of Art. 21 rights; and fifth even on “balance”, section 7 is unconstitutional.

Finally, Senior Advocate P. V. Surendranath advanced submissions on excessive delegation under the Aadhaar Act.

Read the rejoinder note submitted by Senior Advocate KV Vishwanathan here;