The Puzzling Dismissal Of Aadhaar Review Despite Pendency Of Larger Bench Reference On Money Bill Issue

The Supreme Court, by 4:1 majority, dismissed the review petitions challenging the Aadhaar verdict.

The majority order, which starts by rejecting the prayer for open Court/personal hearing of Review Petition(s), is very brief and non-speaking. It only 'hastens' to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The 'subsequent decision/judgment of a coordinate or larger Bench' is an indirect reference to the Constitution Bench judgment in Rojer Mathew case.

Justice DY Chandrachud, in his reasoned dissent, opined that the review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. Terming this dismissal as a 'Constitutional Error', he observed that, 'if these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar-5J.),' it would have serious consequences – not just for judicial discipline, but also for the ends of justice'.'

Refusal Of Open Court Hearing

Order XLVII Rule 3 of Supreme Court Rules, 2013, provides that, unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments. The 1966 Rules provided open court hearing as of right, until its amendment in 1980, which replaced the public hearing method by 'circulatory' system. This amendment was unsuccessfully challenged before the Supreme Court in P. N. Eswara Iyer vs The Registrar, Supreme Court Of India [AIR 1980 SC 808]. The court said that such an amendment was necessitated as a result of unwarranted "review baby" boom. It was clarified that deciding a review petition by 'circulation' would mean that there would not be hearing in Court but still there would be discussion at judicial conference and the Judges would meet, deliberate and reach a collective conclusion. In Mohd. Arif @ Ashfaq vs The Reg. Supreme Court Of India, the Constitution Bench held that, in review petitions arising out of those cases where the death penalty is awarded, it would be necessary to accord oral hearing in the open Court. "Review petitions arising out of death sentence cases is carved out as a separate category as oral hearing in such review petitions is found to be mandated by Article 21. We are of the opinion that the importance of oral hearing which is recognised by the Constitution Bench in P.N. Eswara Iyer (supra) itself, would apply in such cases.", it was observed.

The review petitions filed challenging the Aadhaar judgment questions the upholding of certification of the Aadhaar Act as a 'Money Bill' and its consequence on the constitutionality of the enactment. Most of the review petitions which raises this ground was filed even before the Constitution Bench delivered its judgment in Rojer Mathew case expressing the same doubt expressed in the review petitions.

The judgment under review in this case, i.e. Aadhaar judgment, (delivered on 26th September 2018) had read down some of the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016, struck down a few but significant ones (mainly Section 33(2), 47 and 57), and upheld the rest.

Justice Chandrachud, in his dissent, opined that the entire Aadhaar project is unconstitutional. Later another Constitution Bench headed by Justice Ranjan Gogoi (then CJI) in its judgment [Rojer Mathew vs. South Indian Bank Ltd [19th November 2019] examining the validity of provisions of Finance Act 2017 affecting tribunals, doubted the correctness of the interpretation of the majority judgment which held that Aadhaar Bill is a Money Bill within the meaning of Article 110(1) of the Constitution. It was observed that noted that the majority dictum in Aadhaar judgment did not substantially discuss the effect of the word 'only' in Article 110(1) and did not examine 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). The bench had therefore referred the matter to larger bench which is still pending.

In PN Eswara Iyer, it was observed thus: "The merit of the oral hearing lies in the fact that counsel addressing the court are able to discern what are the aspects of the controversy on which more light is needed. The court can utilise an oral hearing in order to express its doubts on a point and seek clarification thereon from counsel. If there is no doubt whatever oral hearing becomes a superfluity and at best a mere formality."

It is important to note that the review petitions against the Sabarimala verdict was heard in the open court without stating any reasons. No other bench of the Supreme Court had doubted the said judgment and yet such indulgence was given to the review petitioners. Later, the bench referred the matter to a larger bench. The nine judge bench, in an order passed last year, rejected the challenge against such reference made by the 5 judge bench. If Sabarimala is a precedent, then the 'doubt' expressed by a coordinate bench about the Aadhaar judgment, is more than sufficient to not dismiss the review petition by circulation, especially when one of the judges expressed dissent. 

Subsequent decision/judgment of a coordinate or larger Bench 

The brief majority order indirectly refers to Constitution Bench judgment in Rojer Mathew (without naming it) and holds that it cannot be regarded as a ground for review. This might be true in cases when a subsequent judgment by a coordinate bench stops by expressing a different opinion. But in Rojer Mathew, the exact issue, which the review petitioners have also raised, was referred to a larger bench. The majority order reads thus: "Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof), as adumbrated by the majority in K.S. Puttaswamy (Aadhaar5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5 J.) [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] , we accordingly direct that this batch of matters be placed before the Hon'ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench."

In his dissent, Justice Chandrachud identifies this situation very clearly and observes thus: "It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently. In the present case, the above-mentioned review petitions had all been filed before the judgment in Rojer Mathew was delivered on 13 November 2019. The review petitions were pending on the date when a reference was made to a larger bench in Rojer Mathew. These review petitions were previously listed before a five-judge bench headed by Justice Arun Mishra on 25 August 2020, and were not disposed of. Hence, these review petitions have continued to remain pending until now, and there is a strong reason for us not to dismiss them pending the decision of the larger bench, especially in light of the adverse consequences highlighted above."

It is settled that 'the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment"." However, nothing stopped the Court to keep the petitions pending till a larger bench decides the very same issue now before it. By doing so, the court could have avoided a perception that it is sweeping the review petitions under the carpet.