Constitutional Error To Hold At This Stage That No Ground Exists To Review Aadhaar Verdict: Justice Chandrachud Dissents

It is a constitutional error to hold at this stage that no  ground exists to review the judgment, Justice DY Chandrachud remarked in his dissent against dismissal of review petitions challenging Aadhaar verdict.

The judge said 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'

Justice Chandrachud was part of the Constitution Bench which decided the challenge against Aadhaar case. He had opined that the entire Aadhaar project is unconstitutional. 

In his dissenting opinion, Justice Chandrachud opined that the review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew.

He referred to the Judgment of the Constitution Bench headed by Justice Ranjan Gogoi (then CJI) [Rojer Mathew vs. South Indian Bank Ltd] which 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 therein 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).  Taking note of this judgment (delivered by the bench of which he was also a part of), the judge observed:

"The analysis of the majority opinion in Puttaswamy (Aadhaar-5J.) in relation to the second question, i.e., whether the Aadhaar Act was a 'Money Bill' under Article 110 has been doubted by a coordinate bench in Rojer Mathew, when the first question was referred to a larger bench. The larger bench has not been constituted, and is yet to make a determination. Dismissing the present batch of review petitions at this stage – a course of action adopted by the majority – would place a seal of finality on the issues in the present case, without the 14 Court having the benefit of the larger bench's consideration of the very issues which arise before us. The correctness of Puttaswamy (Aadhaar-5J.) on issues pertaining to, and arising from, the certification of a Bill as a 'Money Bill' by the Speaker of the House of People has been doubted by a co-ordinate Constitution Bench in Rojer Mathew. With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petitions, it is a constitutional error to hold at this stage that no ground exists to review the judgment. The larger bench's determination would have an undeniable impact on the validity of the reasons expressed in Puttaswamy (Aadhaar-5J.), on the constitutional issues pertaining to and arising out of the certification by the Speaker of the House of People. The failure to recontextualize the decision of the larger bench with regard to the Aadhaar Act being a 'Money Bill' under Article 110(1) will render it a mere academic exercise."

The judge further opined that since these review petitions have continued to remain pending for a long time until now, it s a strong reason not to dismiss them pending the decision of the larger bench. He also referred to observation in Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v Indian Young Lawyers Assn. [Sabarimala Reference] that reference of questions of law can be made in any pending proceeding before this Court, including the instant review proceedings, to meet the ends of justice.

The judge concluded his note as follows:

"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. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.", Justice DY Chandrachud said in his dissenting opinion.

Justice Chandrachud and Aadhaar related cases

Justice Chandrachud was part of the nine judge bench which held that right to privacy is a fundamental right. The said bench was constituted to answer the reference of some issues which arose in the petitions challenging Aadhaar. Later, the judge was also part of the five judge bench which decided the Aadhaar case. Pertinently, the Supreme Court of Jamaica extensively followed his dissenting opinion in Aadhaar case to declare that its National Identification and Registration Act is unconstitutional, null, void and of no legal effect. Later, the judge was also part of the Constitution bench in Rojer Mathew case, which had doubted the Aadhaar judgment.

Case: Beghar Foundation vs Justice K.S. Puttaswamy (Retd.) [Review Petition (Civil) Diary No. 45777 of 2018]

Coram: Justices AM Khanwilkar, Ashok Bhushan, S. Abdul Nazeer, Justice DY Chandrachud and BR Gavai

Citation: LL 2021 SC 30

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