Review Petition Summary

In September 2018, a 4:1 majority of the Supreme Court upheld the Aadhaar Act, 2016 as constitutional. The majority reasoned that the Aadhaar scheme neither violated the right to privacy nor created a surveillance State. On the procedural side, it concluded that the Act had been validly introduced as a Money Bill in the Lok Sabha and therefore did not require the assent of the Rajya Sabha. Justice D.Y. Chandrachud authored the lone dissent.

 

In the weeks following the judgment, seven parties filed review petitions under Article 137 of the Constitution, hoping for a reversal of the judgment. The review petitioners comprise the Beghar Foundation, Jairam Ramesh, M.G. Devasahayam, Mathew Thomas, Imtiyaz Ali Palasaniya, Shantha Sinha and S.G. Vombatkere.  In this post, we summarise the review petition filed by Advocate-on-Record Vipin Nair on behalf of Shantha Sinha.

 

Sinha’s petition contends that the majority opinion suffers from clear errors. It says that the majority failed to consider essential facts submitted by the writ petitioners, including vital ‘material evidence’. In addition, it contends that the majority relied on contradictory reasoning. Therefore, it prays for the Court to overturn its judgment and strike down the Aadhaar Act, 2016.

 

What is a review petition?

The Court’s review powers enable it to modify a judgment suffering from mistakes. Parties who are dissatisfied by the outcome of a Supreme Court judgment, can seek a review of it under Article 137 of the Constitution.

 

To prevent misuse and the erosion of precedent, the Supreme Court Rules, 2013 (Order XLVII) set in place strict conditions for review petitions. First of all, an application for review in a civil matter such as the Aadhaar dispute, will only be considered on three narrow grounds:

1. ‘Discovery of new and important information’
2. ‘Error apparent on the face of the record’
3. ‘Any other sufficient reason’ (Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius clarified that this means: ‘a reason sufficient on grounds at least analogous to [the first two grounds]’)

 

Further, unlike in regular appeals, Benches hearing review petitions do not fully rehear the original matter. Instead, they must only consider arguments on the narrowly defined grounds specified in the 2013 Rules.

 

Review petitions are always heard by the same Bench that delivered the original judgment. If judges on the original Bench have retired, the Chief Justice will use his/her discretion to replace them.

 

Whether the Aadhar Act was legitimately introduced as a Money Bill?

In the original case, one of the primary issues the Court addressed was whether the Aadhaar Act had been legitimately introduced as a Money Bill. A Money Bill is passed by the Lok Sabha, without going through the Rajya Sabha. The original petitioners contended that the Aadhaar Bill was falsely declared a Money Bill, so as to avoid Rajya Sabha scrutiny. The 2018 majority opinion dismissed this argument.

 

Sinha’s review petition argues that the majority relied on contradictory reasoning. Primarily, the review petition questions how the majority could conclude that the Aadhaar Act was legitimately introduced as a Money Bill, when it itself noted that certain provisions of the Act have no connection with Article 110. In particular, the review petition submits that the majority agreed that Section 57 of the Act has no nexus with Article 110(1), which defines what a Money Bill must contain.

 

The review petition adds that a Bill cannot become a legitimate Money Bill, after the Court removes provisions that fall beyond the scope of Article 110. It says that while the 2018 judgment may have struck down Section 57, this cannot certify the Aadhaar Act as a Money Bill.

 

Finally, according to Sinha’s review petition, the majority mischaracterized the original petitioners’ stance on the Money Bill question. The majority said that the petitioners accepted that the main purpose of the Aadhaar Act is to deliver ‘welfare, benefits and subsidies’. Sinha contends that they never did accept this and that this wrongly supports the conclusion that the Act was correctly certified as a Money Bill.

 

Material evidence suggests mass surveillance

Sinha’s review petition substantially focuses on the state surveillance issue. Justice Sikri’s majority opinion dismissed the argument that the Aadhaar scheme is conducive to mass surveillance. According to Sinha, Justice Sikri ignored key material evidence and expert testimony in reaching this conclusion.

 

For example, the judgment relied on the Union’s submission that the Technology and Architecture Review Board (TARB) is supposed to oversee the UIDAI. However, it does not consider a report by a TARB member, Prof. Maninder Agarwal, which raised surveillance concerns about the Aadhaar scheme. The review petition contends that this constitutes ‘an error apparent’, sufficient to warrant review.

 

The review petition also stresses that the majority failed to consider various expert testimonies, in complete disregard of rules of evidence. It says that this is especially egregious, given that the majority heavily relied on Power Point slides produced by the Union, which were neither submitted under oath nor in the form of an affidavit. Thereby, it suggests that the majority arbitrarily chose which submissions to rely on, in concluding that there are safeguards to prevent misuse of the Aadhaar scheme.

 

Aadhaar necessary to achieve welfare state?

The review petition challenges the majority’s conclusion that the Aadhaar scheme is necessary to address widespread fraud that riddles welfare schemes. The Union had submitted that welfare schemes were suffering from rampant identity fraud. It had said that this prevented the State from distributing vital benefits and services to disadvantaged groups. Ultimately, the majority accepted these submissions and held that they justified privacy infringements.

 

However, according to Sinha’s review petition, the 2018 judgment failed to consider relevant evidence in reaching this conclusion. Sinha submits that the original petitioners had submitted documents that questioned how rampant welfare fraud really was.  Further, Sinha stresses that the Union didn’t rely on any statistical evidence to substantiate its fraud claims. She then questions how minor occurrences of fraud could justify such sweeping privacy infringements by the State.

 

Finally, the review petition submits the judgment contradicts itself on the welfare issue. One of the arguments advanced by the original petitioners was that rights that flow from the fundamental right to life, cannot be made conditional on Aadhaar. For example, the State cannot restrict a disadvantaged individual’s source of subsidized food, on the ground that they don’t have Aadhaar. The review petitioners contend that the 2018 judgment simultaneously agreed and disagreed with this assertion. If correct, such faulty logic would constitute an ‘error apparent on the face of the record’.

 

Other grounds for review

For thoroughness, the review petition also raises various more minor grounds. For example, it submits that the judgment never addressed how the Union had ignored earlier Court orders. As early as 2013, the Supreme Court directed that Aadhaar could not be made mandatory, until the Court delivered its final verdict on the issue. However, the Union disregarded this. The review petition submits that the Court should have held the Union in contempt and that by failing to do so, it neglected its constitutional duty to exercise judicial review.

 

Briefly, the review petition submits that Justice Sikri inconsistently applied the proportionality test. According to proportionality, the State can restrict the right to privacy only if doing so is proportional to a legitimate State aim. According to the review petition, Justice Sikri failed to apply test in one vital instance and thereby committed a serious error, worthy of review.

 

Will the Court admit Sinha’s review petition?

If the Rafale Review is anything to go by, then the Court may not be very receptive to the grounds raised in Sinha’s review petition. Sinha doesn’t point to the discovery of new evidence, but rather asserts that the 2018 judgment suffers from ‘errors apparent on the face of the record’. Unfortunately for her, the Court has set the bar very high for demonstrating that a judgment suffers from an ‘error apparent’.

 

In Rafale, the Court observed that merely because a judgment doesn’t consider submitted documents or commits minor factual mistakes, it isn’t automatically subject to review. Further, the Rafale review judgment indicates that to assert that the Court erred in its legal reasoning is extremely difficult. Unlike in a regular appeal, in a review, the Court is strictly assessing if it committed grave errors in its earlier reasoning, not merely if it failed to consider an alternate legal argument.

 

However, it is difficult to predict how the Court will respond to review petitions, as its review jurisdiction is currently undergoing major change. In the on-going Sabarimala Review, the Court decided to tag factually unrelated cases to the review petitions. In doing so, the Court has established that it isn’t limited to only hearing arguments on the narrow grounds prescribed in the 2013 Supreme Court rules. Perhaps the Court’s appetite for expansively interpreting its review powers, may work in the Aadhaar review petitioners’ favour.