Day 38 Arguments (Pt.2)Constitutionality of Aadhaar Act
May 10th 2018
Arvind P. Datar
Mr. Arvind Datar began with his rejoinder submissions. He focussed on Section 1399AA which made Aadhaar-PAN linking mandatory and PMLA (Prevention of Money Laundering Act) Rule which made Aadhaar mandatory for opening Bank Accounts.
He also submitted that Aadhaar could not be passed as Money Bill under Article 110 of the Constitution. He countered AG’s submission that ‘pith and substance’ doctrine should be applied to determine ambit of a money bill. He stressed that ‘pith and substance’ can only be applied in interpreting legislative entries. At best, Aadhaar could have passed as a ‘Finance Bill’ but definitely not ‘Money Bill’. He argued that doctrine of ‘severability’ will not apply to Aadhaar since it is an invalidly enacted legislation. He termed Aadhaar Act as being ‘stillborn’.
Next, Mr. Datar urged the court to overrule cases Mohammad Saeed Siddiqui and Yogendra Jaiswal for holding that Speaker’s authority to decide a bill as “Money Bill” is beyond judicial review. He quoted from a research paper published at NUJS Law Review that catalogued cases where judicial review was exercised over Speaker’s decision.
He submitted that finality of speaker’s decision can be subject to judicial review. Next, he argued that under Prevention of Money Laundering Act (PMLA), Aadhaar is no longer confined to bank accounts but has been made mandatory for mutual funds, credits cards as well. He charged the State with shifting goalposts by giving “magic words” of fighting black money and terrorism as rationales for mandatory linking of Aadhaar. He said that proportionality test has to be met and cannot be reduced to a ritualistic exercise by citing black money and terrorism. He submitted that fighting black money is being used as a ruse to collect biometric data of 1.2 billion population and he termed it as ‘ colourable exercise of power’ by the State.
Mr. Datar concluded by urging the court to rule in following ways: first, Aadhaar should not be required for anything beyond Section 7 of Aadhaar Act. Secondly, strict scrutiny test should be applied for all 144 notifications making Aadhaar compulsory under Section 7; thirdly, even under section 7, it should be made optional for vulnerable groups – manual labourers, old age people, old people etc; lastly, there should be definite ‘opt-out’ option in Aadhaar.
Mr. P. Chidambaram focused on the interpretation of Article 110 dealing with the definition of ‘Money Bill’. Article 110(g) reads that Money Bill would deem to include “any matter incidental to any of the matters specified in sub-clause (a) to (f)”. He submitted that Article 110(g) is not a substantive provision in itself and must be read very restrictively.
He also submitted that Article 110 should be strictly interpreted as it has the effect of disallowing scrutiny by one house of the Parliament. He urged the court to overrule the judgments of Mohd. Saeed Sidiqqui and Yogendra Kumar Jaiswal. He echoed Mr. Datar’s view that doctrine of severability doesn’t apply to ‘invalidly’ enacted legislation. He countered AG’s submission that ‘pith and substance’ should be applied to the interpretation of Article 110. He said that the test is limited to an interpretation of ‘legislative entries’ and does not apply in this instance. He concluded by saying that Aadhaar Act makes a mockery of Article 110.
Mr. KV Vishwanathan made following submissions to counter the arguments by Union in favour of Aadhar Act
- He rejected Union’s claim that ‘least restrictive method’ is not a facet of proportionality. He said that Aadhaar has created a scenario where citizens are being forced to balance their own bundle of fundamental rights – right to privacy on one hand and right to food on the other. This must be disallowed.
- He countered Union’s submission that Section 59 validates all actions under Aadhaar prior to the passing of the statute.
- He argued that fundamental entitlements of citizens cannot be conditioned on Aadhaar, which is a “technological menace”. The State cannot discharge their duties by making people meet onerous obligations.
- He said that behind all stated purpose of Aadhaar, its underpinning is authentication of individuals and the Act should be struck down
Mr. PV Surendranath made the last submission that Aadhaar Act suffers from excessive delegation and should be struck down. In the end, Mr. KK Venugopal commented that Aadhaar Case by being heard for 38 days became the second longest hearing in the history of Supreme Court after Keshvanand Bharti Case. With this, the hearings ended and the matter reserved for judgment.