How the Aadhaar case remained on ice

Anxiety about delay in the judicial system is at least a hundred years old. In 1923, the Civil Justice Committee was set up to enquire into ways ‘to provide for more speedy, economical and satisfactory dispatch’ of matters transacted in courts and their execution. The first witness to testify before the committee began his paper with this assertion, and with no fear of contradiction: ‘That there is delay, in some cases very great delay, in the disposal of suits and appeals, will be readily conceded.’

Examined by the Committee on 29 July 1924, the Chairman is recorded as asking the witness:

Chairman: I see you say in your paper that no change which does not otherwise strongly commend itself as just should be made merely in the hope that it might conduce to speedy disposal of cases … I understand you do not believe in making any amendment that would be unjust merely for purposes of expediting disposal.

A: Certainly.

Since then, delay has been the preoccupation of the judicial mind incessantly.

The problem of numbers—of the paucity of judges, of cases filed and disposed as well as low rates of conviction—and of procedure and infrastructure, have been raised in report after report. Answers have been sought in more courts, tribunals, more judges, increased budgets, improved infrastructure, scientific case management, Lok Adalat, mediation, arbitration, judicial impact assessment when laws are enacted, judicial academies to train judges and, more recently, the use of technology. Judicial outrage and incredulity at those consigned to prison and then forgotten has, on occasion, excited the imagination of the Court. Yet, more often, it is the strain on institutions—courts and prisons—that has had the court looking for ways to manage—and recover from—situations that could threaten the legitimacy of the system.

In all this, there is one matter that has been treated with delicate reserve: the changes that have been brought to the Constitution by the delay, and the responses to delay, over the years. This concern has now exploded into public debate.

The significance of delay in deciding matters that have an immediate and far-reaching bearing on democracy, liberty, citizenship, the making of laws, the government’s expanding power and shrinking fundamental rights of the people has provoked public comment and raised public anxiety about the part the court may play in restraining state power.

Money Bills and the Elusive ‘Only’

There has been deep disquiet at the passage of laws as Money Bills, circumventing the parliamentary process of deliberation, debate and a vote in both houses of the Parliament. Money Bills, a device that  the Constitution imbeds in Article 110 only so that the business of the government does not stop, shrink the relevance of the Rajya Sabha in making law. It does not need a vivid imagination to see the perils this represents.

In 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act was passed as a Money Bill. It is not quite possible to take seriously the idea that this could be characterized as a Money Bill. For one, a previous version of this law, the National Identification Authority of India Bill 2010, had been introduced in the Rajya Sabha in December 2010. The 42nd Report of the Standing Committee on Finance (2011– 2012) was submitted to the Lok Sabha Secretariat in December 2011. The Committee ‘categorically’ found the proposed law unacceptable, and urged the government to ‘reconsider and review the UID scheme as also the proposals contained in the Bill in all its ramifications and bring forth a fresh legislation before Parliament’. On 3 March 2016, the government withdrew the 2010 Bill from the Rajya Sabha, and then introduced the Aadhaar Bill in the Lok Sabha as a Money Bill!

Article 110 of the Constitution is unambiguous that a Bill ‘shall be deemed to be a Money Bill if it contains only provisions’ dealing with the matters set out in the article which are only about moneys collected, expended and managed by the government. The majority judgment in the challenge to the UID scheme and law elided over the meaning of the word ‘only’ in Article 110, and offered in explanation that Section 7 is the ‘main purpose’ and ‘core provision’ of the Aadhaar Act, which is ‘to ensure that … subsidies, benefits and services’ are delivered, and for which expenditure could be incurred from the Consolidated Fund of India, and that ‘this provision satisfies the conditions of Article 110 of the Constitution’. The other provisions of the Act, the majority said, ‘are incidental in nature which have been made in [sic] the proper working of the Act.’ There was a glaring incongruency in Section 57 of the Act by which:

“any state, any body corporate or person’ could use the ‘aadhaar number for establishing the identity of an individual for any purpose pursuant to any law ‘or any contract to this effect’. The majority read down and read into parts of this provision and said: ‘In any case, a part of Section 57 has already been declared unconstitutional’, and ‘we, thus, hold that the Aadhaar Act is validly passed as a ‘Money Bill’.”

A little over a year later, a coordinate Bench of five judges in Rojer Mathew v. South Indian Bank Ltd said: ‘In the context of Article 110(1) of the Constitution, use of the word “only” in relation to sub-clauses (a) to (f ) pose an interesting albeit difficult question which was not examined and answered by the majority judgment in KS Puttaswamy.’

Rojer Mathew was a challenge to the Finance Act 2017. In Part XIV of the 2017 Act, a number of legislations were amended concerning the ‘qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service’ of those appointed to tribunals. These included, for instance, tribunals established under the National Green Tribunal Act 2010, the SEBI Act 1992, the Cinematograph Act 1952 and the Consumer Protection Act 1986. The Court had to decide questions raised about delegating these tasks to the Central Government, but was stalled in disposing of the matter in its entirety because the question of the passage of such a law as a Money Bill had to be resolved. The Finance Act 2017 had been passed as a Money Bill, and the KS Puttaswamy judgment ‘did not substantially discuss the effect of the word “only” in Article 110 (1) and offer 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)…. Without expressing a firm and final opinion’, the Court referred to a ‘potential conflict’ between the five-judge Bench that decided KS Puttaswamy and the five judges who were dealing with Rojer Mathew. The Court then referred it to the CJI to constitute a larger Bench to hear and decide this matter of the Money Bill. That was on 13 November 2019. Four years from the judgment, nine years since the Aadhaar Act 2016 and eight years after the Finance Act 2017 was passed as a Money Bill, the case is pending. If the Aadhaar Act is found to have been wrongly passed as a Money Bill, what then?

These are not idle musings. They arise from a recollection of what happened even as the UID scheme and the Aadhaar Act 2016 were taken to court. Enrolment in the UID scheme was initially said to be voluntary. That changed from the fading days of 2012, when there were announcements that, come the new year, the UID would be mandatory for a range of services attached to everyday life, illustratively LPG subsidy, services in Delhi’s Revenue Department, income certificates mandatory for establishing eligibility in the economically weaker section (EWS) category and UID mandatory for income certificates.

A wide array of petitioners challenging the UID scheme, including the mandating of enrolment, resulted in the SCI directing, in September 2013, that ‘no person should suffer for not getting the aadhaar card in spite of the fact that some authority had issued a circular making it mandatory.’ In October 2013, there was a plea from the UIDAI and departments of the government, asking the court to reconsider its order. On 26 November 2013, the court turned down this plea and directed that its order to not make the UID mandatory was to continue. On 24 March 2014, the Court emphasized again: ‘More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith.’ And, again, on 16 March 2015: ‘It is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by the various authorities. We expect that both the Union of India and States and all their functionaries should adhere to the order passed by this Court on 23rd September, 2013.’

In hearings that culminated in a significant order on 11 August 2015, the Attorney General made an explosive claim: the people of this country do not have a right to privacy, and that two decisions from a time when fundamental rights jurisprudence was still being expanded— MP Sharma v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh – held the field. This put the case back on the ice block till the privacy question could be resolved, and that would need nine judges—a difficult ask, given the creaking arrears haunting the court. When a nine-judge Bench did give its decision in August 2017, they found neither judgment standing in the way of the right to privacy. By then, another two years had passed. In the early months of 2017, the government had made the UID mandatory in bank accounts threatened with accounts getting frozen, mobile phone verification or the pain of having the connection cut off, filing tax returns and hundreds of notifications were issued wherever people were entitled to state support. So, a person with disability, a person doing manual scavenging or a woman ‘rescued’ from prostitution, for instance, would all have to part with their UID numbers to receive state assistance. Businesses had begun to be built around the UID number. This was delay compounded by flagrant violations of court orders, which the Court was quick to recognize, during which the numbers on the database of those enrolled had, according to the records of the UIDAI, reached almost the entire population. A fait accompli established with delay as ally.

The question refuses to go away: What will be the effect of delay on the Court’s willingness to strike down a law years after the damage has been done? Will it matter that the system has been put in place assisted by a law that is unconstitutional, by deliberately ignoring court orders, and, as in the case of UID, where that which has been foretold in petitions including exclusion, surveillance, convergence, datafication of people has come to pass?

This is an excerpt from Usha Ramanthan’s essay “Judicial Delay and Pragmatism” in ‘[In]Complete Justice? The Supreme Court at 75′, edited by S. Muralidhar and published by Juggernaut Books.