Day 15 Arguments

Constitutionality of Aadhaar Act

March 7th 2018

On 07.03.2018 the 5-judge bench of the Supreme Court comprising CJI Dipak Misra and AM Khamwilkar, DY Chandrachud, AK Sikri and Ashok Bhushan JJ continued hearing this case.


Mr. Datar continued his arguments from the 06.03.2018 where he had assailed the government’s action of mandating the linking of Aadhaar to bank accounts. He asked – if the consequence of not linking was freezing of accounts wasn’t there a presumption that consent would be given? Chandrachud J observed that the moment Aadhaar Act was extended to private entities, it could not be passed as a money bill. Mr. Datar agreed with this observation and added that Aadhaar was introduced as a money bill and it was claimed to be limited to the Consolidated Fund of India. But the moment it was extended beyond the scope of these subsidies, its connection with the Consolidated Fund had snapped. It had ceased to be a money bill and it had required Rajya Sabha approval. Mr. Datar also argued that Rajya Sabha had recommended Section 57 be deleted but as it was passed as a money bill, the recommendation was rejected.


Next, Mr. Datar argued that when the Aadhaar Act mentioned ‘consent’, it had to be understood as ‘consent’ defined under the Contract Act. But, the government was using latent coercion – freezing of accounts, blocking access to services – to obtain ‘consent’. He also added that when one party was in a dominating position, there was no consent at all.


Mr. Datar handed over a copy of “Records, Computers and the Rights of Citizens” by the US Department of Justice. He read out excerpts where the SSN (Social Security Number) as a universal identifier was criticised. He read out that it was unlawful for any federal agency to deny any entitlement to an individual on his/her refusal to divulge the SSN. The decision to not enroll in the Aadhaar scheme was part of an individual’s decisional autonomy and one could not be denied any entitlement as a result of this. Mr. Datar’s next contention was that the definition of biometric information under Section 2(j) had to be defined by the Parliament and could not be left to the regulator.


Moving on to the Binoy Visvam Case (Aadhaar-PAN judgment), Mr. Datar pointed out that the State had argued that linking Aadhaar with PAN was the only foolproof method to ensure there were no fake IDs. He countered that claim by citing instances where persons had their income tax returns by entering 12 zeroes in the income tax return forms. Thus the claim that Aadhaar was fail-proof did not hold true. Furthermore if the purpose of Aadhaar was to eliminate fraudulent behavior, then data retention could not be perpetual. After serving it’s purpose, data collected had to be returned.


Next, relying on Ram Jawaya Kapur which said that when it was necessary to encroach upon rights, a legislation was needed, Mr. Datar assailed the numerous circulars issued which had the effect of violating Fundamental rights. Section 59, the “Savings” clause, could not save these executive actions which violated fundamental rights.


Post lunch, Mr. Datar began by pointing out that in Gujarat, one could not apply for the NEET entrance exam without the production of Aadhaar. The last date for applications was March 9th and this constituted clear violation of interim orders where the court had held that no one could be deprived for want of Aadhaar card. The Attorney General responded that it had not authorised the CBSE to make Aadhaar mandatory for entrance exams. He also added that the interim orders of the court would apply to the pre-Act actions and not to those that took place after the Aadhaar Act had been passed. The Court said that CBSE could ask for some kind of identification but could not limit it to Aadhaar and that interim orders on this would be passed by the end of the day.


Thereafter, Mr. P Chidambaram began arguments on the issue of the Aadhaar Act being passed as a money bill. He questioned if the scrutiny of the Rajya Sabha could be bypassed by terming a bill as a money bill. A money bill denuded the power of the Rajya Sabha and made Presidential assent mandatory. Article 110 said that a Bill shall be deemed to be a money bill if it contains “only” provisions dealing with all or any of the matters enumerated in the provision. He argued that the phrase “only” should be interpreted very strictly. If subject matters other than those enlisted in Article 110 were part of the legislation, then it could not be considered a money bill


The court passed an interim order that applicants need not exclusively produce their Aadhaar number for applying for the NEET exam. They could produce any alternative means of identification. The Court will continue hearing the matter on March 13th 2018.

(The report relies on court reporting by Ms. Ashrutha Rai)