Case BriefsSupreme Court (Constitution Benches)

Supreme Court: On September 26, 2019, the 5-judge bench of former CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan, JJ, ‘finally’ put an end to the Aadhaar dilemma in a 4:1 verdict and declared that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was valid and not violative of the fundamental right to privacy. The Court also held that Section 7 was the core provision of the Aadhaar Act and since it satisfied the condition of Article 110 of the Constitution, the Aadhaar Act was validly passed as Money Bill.

Just over a year later, when another 5-judge bench sat to decide the validity of Finance Act, 2017 as a Money Bill, it realised that the Aadhaar issue might not just be over yet.

The 5-judge Constitution Bench of Ranjan Goigoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ went through the the judgment in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1 when both parties in the Finance Act validity case relied upon it.

After “extensively examining” the issue, the Bench noticed that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the Aadhaar Act, 2016 without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It, hence, said,

“It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers 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).”

In the Aadhaar-5 Verdict, referring to the definition of “Money Bill” and the meaning and purpose of the word ‘only’ used in Article 110(1) of the Constitution, Ashok Bhushan, J. had observed that legislative intent was that the main and substantive provision of an enactment should only be any or all of the sub-clauses from (a) to (f). In the event the main or substantive provisions of the Act are not covered by sub-clauses (a) to (f), the bill cannot be said to be a “Money Bill”. It was further observed that the use of the word ‘only’ in Article 110(1) has its purpose, which is clear restriction for a bill to be certified as a “Money Bill”. It was, hence, observed that the Aadhaar Act veers around the government’s constitutional obligation to provide for subsidies, benefits and services to individuals and other provisions are only incidental provisions to the main provision. Therefore, the Aadhaar Bill was rightly certified by the Speaker as a “Money Bill.

It is pertinent to note that Chandrachud, J was the lone dissenting judge in the 4:1 Aadhaar-5 verdict and he was also the part of the 5-judge bench that referred the issue of validity of Finance Act being passed as Money Bill to a 7-judge bench. In his minority opinion in the Aadhaar-5 verdict, Chandrachud, J had, referring to the word ‘only’ in Article 110(1) of the Constitution, observed that the pith and substance doctrine which is applicable to legislative entries would not apply when deciding the question whether or not a particular bill is a “Money Bill”. He had held,

“the Money Bill must deal with the declaration of any expenditure to be charged on the Consolidated Fund of India (or increasing the amount of expenditure) and, therefore, Section 7 of the Aadhaar Act did not have the effect of making the bill a Money Bill as it did not declare the expenditure incurred on services, benefits or subsidies to be a charge on the Consolidated Fund of India.”

Noticing that the majority judgment in K.S. Puttaswamy (Aadhaar-5) did not elucidate and explain the scope and ambit of sub-clauses (a) to (f) to clause (1) of Article 110 of the Constitution, a legal position and facet which arises for consideration in the present case and assumes considerable importance, the Court, held

“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 (Aadhaar-5) 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), we accordingly direct that this batch of matters be placed before Hon’ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.”

[Roger Mathew v. South India Bank Ltd.,  2019 SCC OnLine SC 1456, decided on 13.11.2019]


Read the full report on 2018 Aadhaar Judgment here.

Read the full report on the Finance Act judgment here

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution Bench of Ranjan Goigoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has upheld the validity of Section 184 of the Finance Act, 2017 and held that the said Section does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court.

The Court, however, struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, made under Section 184 of the Finance Act, 2017, for being contrary to the parent enactment and the principles envisaged in the Constitution.

In the 255-pages long verdict, CJI Ranjan Gogoi penned the majority opinion for the Bench and Justices DY Chandrachud and Deepak Gupta wrote separate but concurrent opinions.

Majority Opinion written by Gogoi, CJ

Finance Act being a Money Bill

The Court said that the provisions of Article 110(1) have to be given an appropriate meaning and interpretation to avoid and prevent over-inclusiveness or under-inclusiveness. Any interpretation would have far reaching consequences. It is therefore, necessary that there should be absolute clarity with regard to the provisions and any ambiguity and debate should be ironed out and affirmatively decided. In case of doubt, certainly the opinion of the Speaker would be conclusive, but that would not be a consideration to avoid answering and deciding the scope and ambit of “Money Bill” under Article 110(1) of the Constitution.

It, hence, held,

“The issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is referred to a larger Bench.”

Correctness of Aadhaar Verdict & reference to 7-judge bench

Since both the parties had relied upon the judgment in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1, the Court extensively examined the issue and noticed that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the Aadhaar Act, 2016 without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It said,

“It is clear to us that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers 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).”

Noticing that the majority judgment in K.S. Puttaswamy (Aadhaar-5) did not elucidate and explain the scope and ambit of sub-clauses (a) to (f) to clause (1) of Article 110 of the Constitution, a legal position and facet which arises for consideration in the present case and assumes considerable importance, the Court, held

“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 (Aadhaar-5) 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), we accordingly direct that this batch of matters be placed before Hon’ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench.”

Validity of Section 184 of Finance Act, 2017

Accepting the submission of Attorney General KK Venugopal that Section 184 was inserted to bring uniformity and with a view to harmonise the diverse and wide-ranging qualifications and methods of appointment across different tribunals carries weight, the Court said,

“we do not think that the power to prescribe qualifications, selection procedure and service conditions of members and other office holders of the tribunals is intended to vest solely with the Legislature for all times and purposes.”

Grounds for striking down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017

  • Search-cum-Selection Committee as formulated under the Rules is an attempt to keep the judiciary away from the process of selection and appointment of Members, Vice-Chairman and Chairman of Tribunals.
  • There has been a blatant dilution of judicial character in appointments whereby candidates without any judicial experience are prescribed to be eligible for adjudicatory posts such as that of the Presiding Officer. Parliament cannot divest judicial functions upon technical members, devoid of the either adjudicatory experience or legal knowledge.
  • In many Tribunals like the National Green Tribunal where earlier removal of members or presiding officer could only be after an enquiry by Supreme Court Judges and with necessary consultation with the Chief Justice of India, under the present Rules it is permissible for the Central Government to appoint an enquiry committee for removal of any presiding officer or member on its own. The Rules are not explicit on who would be part of such a Committee and what would be the role of the Judiciary in the process. In doing so, it significantly weakens the independence of the Tribunal members.
  • The extremely short tenure of the Members of Tribunals is anti-merit and has the effect of discouraging meritorious candidates to accept posts of Judicial Members in Tribunals.
  • There are also certain contradiction in the Rules that warranted a relook.

The Court, hence, directed the Central Government to re-formulate the Rules ensuring non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind the fact that the Chairperson and Members appointed after retirement and those who are appointed from the Bar or from other specialised professions/services, constitute two separate and distinct homogeneous classes.

The Court, however, granted interim relief and directed that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017 till the new Rules are framed.

Judicial Impact Assessment

The Court issues a writ of mandamus to the Ministry of Law and Justice to carry out a Judcial Impact Assessment of all the Tribunals referable to the Finance Act, 2017 so as to analyse the ramifications of the changes in the framework of Tribunals as provided under the Finance Act, 2017.

Direct Appeal to Supreme Court

The Court also asked the Central Government to re-visit the provisions of the statutes referable to the Finance Act, 2017 or other Acts and place appropriate proposals before the Parliament for consideration of the need to remove direct appeals to the Supreme Court from orders of Tribunals within 6 months.

Chandrachud, J’s separate but concurrent opinion

Chandrachud J, who was the lone dissenting judge in the 4:1 K.S. Puttaswamy (Aadhaar-5)  verdict, has held that Part XIV of the Finance Act 2017 could not have been enacted in the form of a Money Bill, hence, the aspect of money bill should be referred to a larger Bench.

He also suggested that a “National Tribunals Commission” be set up to oversee the selection process of members, criteria for appointment, salaries and allowances, introduction of common eligibility criteria, for removal of Chairpersons and Members as also for meeting the requirement of infrastructural and financial resources. It should comprise of:

  • Three serving judges of the Supreme Court of India nominated by the Chief Justice of India;
  • Two serving Chief Justices or judges of the High Court nominated by the Chief Justice of India;
  • Two members to be nominated by the Central Government from amongst officers holding at least the rank to a Secretary to the Union Government: one of them shall be the Secretary to the Department of Justice who will be the exofficio convener; and
  • Two independent expert members to be nominated by the Union government in consultation with the Chief Justice of India
  • The senior-most among the Judges nominated by the Chief Justice of India shall be designated as the Chairperson of the NTC.

Gupta J’s separate but concurrent opinion

While Gupta, J agreed that it was necessary to have such a Commission which is itself an independent body manned by honest and competent persons, he disagreed on the composition of the said Committee as suggested by Chandrachud, J. He said that the serving Judges of the Supreme Court or the Chief Justice of the High Courts were already overburdened and that it would be much better if they could spend their time and energy in filling up the vacancies in the High Courts rather than venturing into the field of tribunals.

He also said that having a very large committee would not serve the purpose. The Composition of the “National Tribunals Committee” as suggested by Gupta, J is:

  • Two retired Supreme Court Judges with the senior most being the Chairman
  • One retired Chief Justice of High Court to be appointed by the Chief Justice of India.
  • One member representing the executive to be nominated by the Central Government from amongst officers holding the rank of Secretary to the Government of India or equivalent. This member shall be the ex-officio convener.
  • One expert member can be co-opted by the by full time members. This expert member must have expertise and experience in the field/jurisdiction covered by the tribunal to which appointments are to be made.

[Roger Mathew v. South India Bank Ltd., 2019 SCC OnLine SC 1456, decided on 13.11.2019]

Hot Off The PressNews

Supreme Court: The Centre told the 5-judge bench of Ranjan Gogoi, CJ and N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ that Finance Bill of 2017 was certified as a Money Bill by the Speaker of the Lok Sabha and judicial review of that decision cannot be done.

Attorney General K K Venugopal told the Court that petitioners’ contention that certification of Finance Bill of 2017 as Money Bill was not right cannot be a ground for a challenge to the Bill. He said:

“The Act of 2017 deals with various aspects of finance. Speaker of the House gave the certification that Finance Act was a Money Bill. Finance Act of 2017 was passed by the Parliament as a Money Bill irrespective of the objections in Rajya Sabha.”

He added that “Certification of a particular Act as a Money Bill is an internal functions of the Parliament. If there is any dispute, the Speaker can applies his mind and takes a decision. No one can questions the bonafide of the Speaker and all members abide by the decision.”

Submitting that Supreme Court has repeatedly held in its verdicts that certification cannot be questioned and courts cannot inquire into the decision taken by Parliament, the AG said:

“This aspect is consistent with the broad parameters of separation of powers given in the Constitution. Similarly, Parliament cannot interfere with the affairs of judiciary.”

He also submitted that the Finance Bill comprises of amendments to several Acts and statutes and the petitioners have challenged only one particular aspect saying it cannot be termed as Money Bill.

“The certification of Money Bill is for the whole Finance Bill and saying that a part of the Bill does not qualify for the Money Bill cannot be held to be correct.”

On March 27, the Court had said:

“If we hold that it was not a money bill, then the matter rests there but if it is being held by the court that it was a money bill then subsequent issues which pertains to affairs of tribunal will be dealt,”

The Court clarified that it is not going to hear 20 lawyers on the same point repeatedly saying,

“this anarchy has to stop in the Supreme Court. Lawyers are arguing and arguing for 20 days on the same point”.

It asked the petitioners to discuss among themselves and sort it out as who will advance the arguments and if needed someone else can supplement on a particular point.

The Court will continue hearing the matter on April 2, 2019.

(Source: PTI)


Also read: Integrated Nodal Agency for all Tribunals: 5-judge SC bench seeks Centre’s view

Hot Off The PressNews

After hearing the much-debated Aadhaar matter for 38 days, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ has reserved the judgment. The hearing had begun on January 17, 2018.

Below are the highlights from the arguments advanced on the last day of the Aadhaar Hearing:

  • Senior Advocate Gopal Subramanium: 
    • Is Aadhaar really affirmative action? Is the act an enabler or is it in the guise of enabler? The act is not an instrumentality to deliver services. It is only a means of identification. We have to read the true purpose of law and whether the law seeks to achieve that purpose. Dignity and autonomy is not preserved by section 7 of the Aadhaar Act.
    • Aadhaar Act does not have a proper purpose. A claim to a proper purpose is not proper purpose. Authentication is at the heart of the Act. Failure of authentication is a ground for denial of services.
  • Chandrachud, J: An act like Aadhaar needs a regulator which is absent.
  • Gopal Subramanium: The state seeks to take away our data without the backing of a strong data protection framework. Words like “grant of subsidies, benefits and services” are expressions of condescension in Section 7. They are not treated like an entitlement. The burden is on the people to authenticate and establish their identity. Should the State logically be the holder of such information?
  • Chandrachud, J: Is “subsidy” a benefit or a right, that has to be decided.
  • Gopal Subramanium: 
    • Private players have access to Aadhaar data. There is no regime of protection. There is no vertical protection.
    • Section 7 has been interpreted to be mandatory. Can’t make citizens subservient under section 7 and call rights, benefits.
    • The Act is to be struck down completely as it fails all three tests laid down in Puttaswamy. There’s no legitimate state aim as the real aim is different from the purported aim. There was no law when Aadhaar was implemented and there’s no proportionality.
    • This Court consciously overruled ADM Jabalpur. The doctrine of possibility of misuse does not apply here because there is actual denial of rights in the case of Aadhaar.
    • Aadhaar Act should be completely struck down and the architecture and database must be destroyed.

_________________________________

  • Senior Advocate Arvind P. Datar:
    • Aadhaar cannot be a money bill. At most, it can be a financial bill of category 3 under Article 117(3) of the Constitution.
    • Doctrine of severability will not apply to Aadhaar, since the doctrine is only applicable to validly enacted laws.
    • Mohd.Saeed Siddiqui and Yogendra Jaiswal should be overruled. Finality of speaker’s decision doesn’t mean that the bill cannot be subject to judicial review.
    • Under PMLA, Aadhaar is not just confined to banks but has gone beyond it’s scope. Aadhaar is needed for mutual funds, insurance policies and credit cards as well, among other things.
    • Only magic words like black money, national security and terrorism are being thrown around by the State. The justification of a law for proportionality cannot be a ritualistic exercise. Aadhaar is not justified under Article 300A of the Constitution.
    • Linking Aadhaar will never solve problems of money laundering and black money because the source of such money is different. This is colorable exercise of power. Black money and money laundering is being used as a ruse to collect people’s biometrics.
    • Section 57 should go completely. Anything outside Section 7 is completely violative of the Puttaswamy judgement. S.139AA of the income tax act is inconsistent with the Aadhaar Act.
    • There should be an option of opting out of Aadhaar.

_________________________________

  • Senior Advocate P. Chidambaram:
    • AG’s reading of the word “only” in Article 110(g) is erroneous. There is no need to tamper the language of the Article.
    • Section 57 travels beyond Article 110 of the Constitution. Clause (g) of 110 (1) must be read very restrictively. The provision has to be incidental to (a) to (f) to come under (g). Clause (g) is not a substantive provision.
    • The implications of passing a non money bill as a money bill are very serious: One half of the parliament is virtually disabled from making any amendments. It denudes the highest constitutional authority of the country, the President of India.
    • There is no provision in the Constitution which gives the court the power of severability in case of an invalidly enacted legislation. The Australian constitution has such a provision.
    • The bill was passed without the effective participation of the Rajya Sabha and without assent from the President. The court cannot save a legislation that is fundamentally unconstitutional.
    • Pith and Substance doctrine cannot be applied in cases where the applicability of Article 110 is being interpreted. Only limited to entries of legislative lists.
    • The Court must strike down the Aadhaar Act as it is not a money bill. It is a mockery of Article 110.

_________________________________

  • Senior Advocate K.V Vishwanathan: 
    • Respondents’ argument that the least intrusive method is not a facet of proportionality is completely erroneous. You can’t balance your own bundle of rights. Balancing Right to food and right to privacy is wrong.
    • Section 59 doesn’t protect Aadhaar during the time it was not an Act. Its a wrong submission made by the state. To rely on the exception handling mechanism is ultra vires the Act.
    • If it’s my rights and their duty, then they cannot discharge their duty by subjecting the poor and downtrodden of this country to a technological menace.
    • There can be no data collection and digitalization of records. The underpinning of the Aadhaar Act is authentication of individuals.
    • Harmonization of rights is being mis-applied by the respondents.

____________________________________________________________________________________________________________________________

To read the highlights from the rejoinder submitted by the petitioners, click here and here.

To read the highlights from the submissions of AG KK Venugopal on the issue of money bill, click here.

To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/SFLCin

Hot Off The PressNews

On Day 35 of the Aadhaar Hearing, Advocate Zoheb Hossain, appearing for the State of Maharashtra and UIDAI, resumed his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Attorney General KK Venugopal made submissions on Aadhaar Act, 2016 being passed as a Money Bill.

Below are the highlights from the arguments advanced on Day 35 of the Aadhaar Hearing:

  • Advocate Zoheb Hossain:
    •  Data protection law is a positive obligation of the State. All rights give rise to a variety of duties. Aadhaar is a project to ensure socio economic rights of the people.
    • All human rights are equally important, indivisible and are interconnected. Socio economic rights are as important as civil and political rights.
    • a UN General assembly resolution says that ideal of freedom can only be achieved if conditions are created so that everyone can enjoy socio economic and civil political rights.
    • To judge proportionality, reasonableness of the measure/restrictions have to be shown from the point of view of the general public and not from the PoV of one affected party.
    • Right to privacy is an individual right which can be highly subjective or objective and the state cant be held to be vicariously liable for it. No petitioner has claimed infringement of right to privacy.questions the fact that right to Privacy violation is being heard as a PIL.
    • A person may use her aadhaar for obtaining SIM, opening bank account and getting PDS. Her telecom company will not have details of the bank/PDS. Similarly, her bank will not have info on her telecom and PDS. UIDAI won’t have any of the three details.
    • Aadhaar act provides adequate safety to identity and authentication records.
    • A party cannot expect strict adherance to the principles of natural justice during times of emergency.
    • Section 47 has been of challenge for not providing a right to complain. Purpose is discernible under the scheme of the act. A complaint can be filed to UIDAI therefore a person is not left remedy-less.
    • Aadhaar is technical and it’s best if UIDAI is given the power to complain as they best understand the matters. Similar provision in Industrial Disputes Act was upheld. UIDAI may authorize a person to make a complaint if they feel it’s genuine.
    • There are provisions under the IT act for offences such as Identity theft, violation of privacy etc.
    • The purpose of Aadhaar including section 139aa is to promote redistributive justice and ensure substantial equality along with furthering the dignity of the individual.  Aadhaar act and Income tax act are standalone acts and it cannot be said that parliament in it’s wisdom cannot make Aadhaar mandatory by way of an amendment.
    • This argument has already been examined and decided in binoy viswam. If the objects of the two statutes are different then they are said to run parallelly and not intersect. There’s no conflict.
    • Having Aadhaar for individuals also cures the evil vis-a-vis companies. Companies and individuals are treated differently in the income tax Act. That cannot be called unreasonable classification.
    • Section 165 of companies Act allows a person to be the director of twenty companies. If Aadhaar is linked with PAN, it can be checked whether a genuine person is the director of more than one company. The genuineness of the company can also be verified.
    • Problem of dummy directors and fake companies will be solved by linking Aadhaar with PAN.

______________________________________________

  • Attorney General KK Venugopal on the issue of Money Bill:
    • The term “targeted delivery of subsidies” contemplates expenditure of funds. The expenditure has to go into thousands of crores from the consolidated fund of India. This itself brings it into the ambit of money bill under Article 110 of the Constitution.
    • Even though the law has ancillary provisions, the main objective of the Act is delivery of services and benefits.
    • Sections 7, 24 and 25 along with the preamble of the Act brings it totally within the ambit of Article 110. Not a single provision in the act is unnecessary or unrelated to the main purpose/pith and substance of the act which is giving subsidies.
  • Chandrachud, J: Section 57 snaps the link with consolidated fund of India.
  • AG: When the contract is placed before your Lordships, then it has to be examined. We may not know today what color or aspect the contract under Section 57 would take.
  • Sikri, J: There’s no distribution of benefits and subsidies under section 57.
  • AG: Section 57 will be saved by Article 110(1)(g).
  • Chandrachud, J: You may be rewriting the Constitution!

____________________________________________________________________________________________________________________________

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/SFLCin

Hot Off The PressNews

As the Aadhaar Hearing reached Day 16, Senior Advocate P. Chidamabaram concluded his arguments on the issue of Aadhaar Act, 2016 being introduced as a Money Bill before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. The most important take away from Day 16 hearing was that the Court scrapped the present deadline for linking Aadhaar stand extended till the final disposal of the matter.

Below are the highlights from Day 16 of the Aadhaar Hearing:

P. Chidambaram’s Submissions on Money Bill issue:

  • Speaker’s decision is not final. It is subject to judicial review.
  • (Reads S R Bommai v. Union of India) The satisfaction ofthe President mentioned in clause (1), shall be final and conclusive and shall notbe questioned in any court on any ground.
  • Any bill if passed in the guise of money bill strucks at the basic feature of Constitution i.e. federalism.
  • (Reads Raja Ram Pal v. Speaker) Validity of any proceeding in the Parliament on grounds of irregularity of procedure cannot be looked into by the court. However, illegality can be a ground for the courts to exercise judicial review. If the impugned procedure adopted in Parliament is illegal and unconstitutional, judicial review lies.
  • The question why it was termed as money bill was raised by MP Jairam Ramesh in the discussions. He had moved for amendments in the bill which were adopted in Rajya Sabha, however, these amendments were not considered by the Lok Sabha and it was passed in original.
  • The apparent object of the Aadhaar Bill is to make a law that will fit into Article 110(1)(c) & (g).
  • Chandrachud, J: If we cross the threshold of justiciability, which are the provisions are relatable to Art. 110?
  • Chidambaram: Question should be is there any provision in the Act which doesn’t fall under Ar. 110 (a) to (g). Because money bill can’t have any provision beyond (a) to (g). Provisions such as Section 57, 54, 23 go beyond the scope of Article 110. And hence it is not a money bill but merely a financial bill. It wasn’t a money bill when introduced or certified.
  • Chandrachud, J:  Does the entirety of the bill has to go or the portions can be severed-those provisions which fall under Art. 110?
  • Chidambaram: It will go in entirety. The provisions are not severable.
  • The provisions make it clear that it was not a money bill, then how could it have been passed as a money bill and the scrutiny of Rajya Sabha been bypassed. If this could slip through as a money bill, virtually any bill could slip as a money bill. It sets a very dangerous precedent. Money bill is an extremely narrow subset of financial bill. This bill goes far beyond the intended purpose of delivery of subsidies.

Submissions on issue of Aadhaar being made mandatory for Tatkal Passport:

  • Arvind Datar: Government can’t make Aadhaar mandatory in violation of SC order. (Further asks the court to consider extension of deadlines.)
  • AG KK Venugopal: There are other IDs eg. water bill, electeicity bill which can be taken. Aadhaar is only for expediting the procedure. Says that in case of passport under tatkal scheme, Aadhaar is required for out of turn consideration to expedite the process. (Requests that the extension of deadlines should not affect section 7- the subsidies.)

Hence, Court passed an interim order directing that the order passed on earlier occasion stands extended and that this extension would also cover the issue of passports.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

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Senior Advocate Arvind Datar continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on Day 15 of the Aadhaar Hearing. Earlier, on Day 14, he had argued on the issue of Linking Bank Accounts to Aadhaar as per Rule 9 of Prevention of Money-laundering Act, 2002. After Arvind Datar concluded his submissions, Senior Advocate P. Chidambaram began his arguments on the issue of Aadhaar Act, 2016 being introduced as a Money Bill.

On the question of extending the deadline for linking Aadhaar, Chandrachud, J said:

“we cannot extend the dates for linking at the last moment because the financial institutions will be in a state of uncertainty till then thinking 31st March to be the last date for linking.”

The Court, however, said that it will pass an interim order, if required, on the issue on the next date of hearing i.e. 13.03.2018, after P. Chidambaram has concluded his submissions.

Below are the highlights from Day 15 of Aadhaar Hearing:

Arvind Datar’s submissions:

  • If you don’t give Aadhaar, your accounts will become inoperable. It can’t be called consent. There’s no option to opt out.
  • Aadhaar was preceded by NIA bill. Aadhaar Act was only for the purpose mentioned in the objects and using it for any other purpose would be invalid.
  • Chandrachud, J: The moment you extend Aadhaar to private entities, the money bill aspect will be gone.
  • Arvind Datar: Yes. The Act was passed as a money bill without any regard to the recommendations of Rajya Sabha. Had it not been a money bill, it would go to Rajya Sabha, recommendations would be considered, and Section 57 would not be there. An opt out clause would be there.
  • If one party is in dominating condition, it is not a free consent which is the case in this matter. To enroll or not to enroll is my choice. It is my decisional autonomy to part with or not to part with my personal information.
  • Today it is not possible for a person to survive without an Aadhaar. It has its intrusion from birth to death of an individual.
  • Aadhaar/PAN judgment should be revisited in light of the privacy judgment:
    • After Privacy judgment, it is the personal autonomy of the person whether she wants to take Aadhaar or not or even if she has aadhaar- whether she wants to link Aadhaar or not.
    • Attorney General, during the PAN case, had stated linking Aadhaar with PAN is the only foolproof method to ensure there are no fake PAN. (Tells about the case where a person entered 12 zeroes while filing income tax returns, his returns were accepted and refund processed.)
    • If your purpose is to eliminate fakes, it need not be perpetual. After achieving the purpose, my data should be returned. What is the need to keep it perpetually?
  • Mandatory Aadhaar for applying for NEET Exam:
    • In Gujarat, one cannot apply for NEET entrance exam without production of Aadhaar, last date being 9 March. Saya that it is a clear violation of the interim orders of the Court.
    • Attorney General KK Venugopal:  State has not authorised CBSE to make Aadhaar mandatory for entrance exams.
    • Bench: “Any such authority has the right to ask for some kind of identification but not exclusively Aadhaar. We will consider the relief for this particular case at the end of Mr. Chidambaram’s arguments.”

P. Chidambaram’s submissions on the issue of Money Bill:

  • Can one can bypass the scrutiny of Rajya Sabha by terming a bill as Money Bill?
  • A money bill cannot be introduced in Rajya Sabha. In this case, Rajya Sabha becomes only a recommending house. They have no legislative power but only recommendative power.
  • Money bill is a very special kind of bill. Therefore, in the light of denudation of the powers of Rajya Sabha and deprivation of powers of President, these provisions should be construed very narrowly and strictly so that nothing escapes in the guise of money bill.

Interim Order on Aadhaar being made mandatory for Entrance Exams:

The Bench passed an interim order on the CBSE NEET entrance exam and all other All-India examination that the applicants need not produce Aadhaar number for applying. They can produce any alternative means of identification including Ration card, driving licence, etc. The order will also be uploaded on the CBSE website.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin