How the Aadhaar judgment couldn't fully resolve the fight between 'I' and 'Me'

Was the Aadhaar Act passed as a money bill a fraud on the Constitution? Justice Chandrachud rightly says it is.

 |  5-minute read |   15-10-2018
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Who am I?

According to the dissenting Justice Chandrachud, I have become a 12-digit number.

‘No’, says the majority led by Justice Sikri: ‘I’ means ‘Me’, but sometimes I have to prove that I am ‘Me’.

But, says Justice Chandrachud, there are other ways of proving ‘I’ am ‘Me’ without parting with my biometrics and for fear that people may steal ‘Me’.

No, says the majority.

Without Aadhaar, I’s rights will be stolen by others pretending to be ‘Me’.

But, how can you ensure that people don’t steal my ‘identity’ pretending to be me.

In any case, why should I part with either ‘I’ or ‘Me’ which is personal to me and my privacy?

The majority Aadhaar judgment did not do full justice to the ‘I-Me’ privacy questions.

chandrachud_101518014308.jpgThere are other ways of proving ‘I’ am ‘Me’, said Justice Chandrachud. (Photo: PTI)

The controversy

One of the controversial issues was whether the Aadhaar Act could be passed as a money bill. The position is what is certified as a money bill need not be discussed fully by the Rajya Sabha reflecting English procedure after 1911.

In the Aadhaar case, the majority said this was a money bill because it had financial implications.

All Bills have some financial aspects and carry a financial memorandum. A Money Bill is scrupulously defined by the Constitution (Article 110).

Justice Chandrachud was right in saying that this was not a money bill irrespective of the finality of the Speaker’s certificate.

Years ago, Lord Denning in the Pickin case (1972) took the view that courts can interfere if Parliament does not follow the prescribed procedure. He was overruled by the House of Lords in 1974 on the ground that courts could not invade parliamentary privilege.

Lord Denning was right.

Justice Chandrachud is also right in saying that the manner in which the Aadhaar Act was passed is a fraud on the Constitution. The fact that parliament procedure was examinable opens up possibilities.

The majority judgment was all too conscious of the uses and abuses of Aadhaar.

The first question is: in what cases Aadhaar is mandatory.

aadhaar_101518014324.jpegThe judgment will help financial transactions of the middle classes. (Photo: India Today)

The statute was too expansive extending its use by even private companies (Section 57) which was held unconstitutional.

The Court also held that Aadhaar cannot be insisted on in school admissions, NEET and other exams, for mobile phone connections as required by a government circular, or bank accounts thus protecting many arenas of social and financial life.

The two broad areas where it is required are benefits and subsidies and for the income tax pan card.

In one sense, the purpose is to avoid fraud to ensure ‘social welfare benefits’ reach the right person and prevent tax impersonations. Why didn’t the statute say so rather than virtually mandating universal application? The majority re-wrote the Act without which the Act was unconstitutional.

The welfare benefits

The judgment will help financial transactions of the middle classes, but will be an impediment to the poor to get benefits. The new constitutional test is reasonableness in proportionality, meaning the action or statute must be the “least invasive” of alternatives.

Aadhaar is not the only form of identification. We are besieged by many such: passport (also electronic), pan cards, ration card, driving licence, house tax returns, etc. The ‘least invasive’ approach would allow all or any of these. Justice Chandrachud is right that Aadhaar in the statute (read as a whole) was not the least invasive. The majority was concerned with practicalities of disbursing welfare benefits, excessive scrutiny and rejection of other identities. But it is precisely welfare benefits that are being denied in the absence of Aadhaar.

The mantra of the majority is foolproofism in these areas with other alternatives where there are authentication failures.

In what areas?

Even the majority applies proportionality in some areas, for example, banking. Limited application in some areas should be acceptable. But Justice Chandrachud warned that the Aadhaar exercise must not enable the real danger of taking over a person’s identity. Together these judgments are over 1,400 pages long.

Is this really necessary? As long as the Basic Structure judgment (1973) which was foundational. Once, the majority-minority judgments were clear, why was there a need for an additional majority judgment which added nothing more. Such additions are affectations for posterity. Judges should write judgments for ‘now’, for the common people to understand instead of making legal pronouncement a rocket science.

supreme-court_101518014342.jpgWhere a controversy arises, government and politicians pass on the problem to the Supreme Court. (Photo: India Today)

Aadhaar Act or fraud?

We must return to our fundamental questions. Was the Aadhaar Act passed as a money bill a fraud on the Constitution? Justice Chandrachud rightly says it is.

Governments cannot short-change parliamentary discussion in defiance of democracy. The Aadhaar Act (read as a whole) was a massive sprawling unreasonable statute, made reasonable by the majority judges by chopping, changing and guidelines.

The Court certainly has that power within reason.

But with all these caveats it is actually making an unconstitutional statute constitutional.

Pragmatism is a part of judicial review, but rewriting a statute is much too serious to support as a habit.

Where a controversy arises, government and politicians pass on the problem to the Supreme Court. They are afraid to take a decision because the electorate may be upset.

Once the court’s decision is delivered, the government hides its true intentions behind the court judgment saying now we have no other choice but to follow.

Occasionally once again for electoral, rather than public interest, reasons they threaten to overturn the judgment.

This is yet another game suggested for Aadhaar.

(Courtesy of Mail Today)

Also Read: The BJP's Aadhaar: Minimum governance, maximum subterfuge

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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