Day 16 Arguments
Constitutionality of Aadhaar ActMarch 13th 2018
On 13.03.2018, Mr. P Chidambaram, representing Mr. Jairam Ramesh resumed his arguments against the Aadhaar Act being passed as a Money Bill. He argued that judicial interference in Parliamentary proceedings was limited by Article110 (3) (which says that if any question arises whether a Bill is a Money Bill or not, the decision of the speaker shall be ‘final’) and Article 122 (which says that any Parliamentary proceedings shall not be called in question on ground of ‘irregularity’).
Mr. Chidambaram cited a number of case laws to emphasize that no provision was beyond review. In this case, the Aadhaar struck at the basic feature of the Constitution – federalism – as it took away the power of the Council of States to review a legislation. He cited S.R. Bommai which held that the president’s satisfaction in deciding to impose President’s rule was subject to judicial review. In Kihoto Hollohan, the Speaker’s decision on defection was not beyond appeal and judicial review. Mr. Chidambaram relied on Raja Ram Pal to draw the distinction between illegality and procedural irregularity. Article 122 protected only procedural irregularity. Bhushan J agreed that judicial review on illegality was available.
Mr. Chidambaram continued that passing the Aadhaar Act as a Money Bill was not mere procedural illegality but an illegality. The court thus had the power of judicial review in this case. In Mohd. Saeed Siddiqui v State of UP, the UP Lokayukta and UP-Lokayukta (Amendment) Act, 2012 were passed as Money Bills. A 3-judge bench of the Supreme Court held that the decision of the speaker on a Money Bill was final and said the decision could not be disputed. But Mr. Chidambaram distinguished the Mohd. Saeed Siddiqui case from the Aadhaar one as the judgement did discuss what constituted a Money Bill, and Mohd. Saeed Siddiqui was linked to an Amendment. He urged the court to not place reliance on the Mohd. Saeed Siddiqui case in determining ambit and scope of judicial review of Money Bill.
Mr. Chidambaram then moved to his next submission. He said that the scope of Section 7 which stated that an Aadhaar number was required in order to receive subsidies and benefits, Section 23(2)(h) which said that Aadhar could be used for subsidies, benefits and “any other purpose”, and Sec 57 which said Aadhaar could be used by anyone for any purpose were the reasons why the Aadhaar Act could not be a Money Bill. The only connection Aadhaar had with being a Money Bill was that the funds were disbursed from the Consolidated Fund but that condition alone was not sufficient to qualify it as a Money Bill. Several other similar bills – NREGA, Indian Institute of Information Technology Bill – had not been passed as a Money Bill. If the bills which were passed as a Money Bill were scrutinised, then “Aadhaar would stick out like a sore thumb”.
Chandrachud J enquired if the whole Act could be struck down when only certain provisions went beyond the scope of a Money Bill. Mr. Chidambaram replied that if the whole bill was wrongly certified and passed, then it could not be retrospectively severed. The Australian Constitution permitted that but no such provision existed in India. Mr. KV Vishvanathan representing one of the intervening parties is scheduled to argue tomorrow.
Mr. Arvind Datar sought the extension of Aadhaar linking deadline (March 31st 2018). The Bench passed an interim order extending the deadline until the time the judgment is delivered. However, this extension does not apply to disbursal of subsidies. The matter will be next heard on March 14th 2018.