13743 - Legal challenges to Aadhaar: Money bill, early enrolments and exclusions - The Print

Legal challenges to Aadhaar: Money bill, early enrolments and exclusions

MADHAV KHOSLA and ANANTH PADMANABHAN 26 June, 2018

Much literature on Aadhaar has focused on whether it’s voluntary or mandatory. As a legal matter, this issue is only relevant for the exclusion challenge.

The following months are likely to radically alter the relationship between citizens and the state. The Supreme Court will soon deliver its verdict on Aadhaar. As India readies itself for the verdict, it is worth exploring the specific legal issues involved.

Keeping in mind Aadhaar’s basic framework – its focus on authentication, its seeding with other databases, its federated database and one-way linking – and the Supreme Court’s Puttaswamy decision upholding the right to privacy, let us consider the first legal challenge: categorising the Aadhaar Bill, 2016, as a money bill.

A money bill?

Under the Constitution, bills need the support of both houses of Parliament to become laws. A rare exception is the ‘money bills’ provided for in Articles 109 and 110. Such bills need do not require the approval of the Rajya Sabha.

In the Aadhaar case, the petitioners argued that the bill, with its wide-ranging provisions and applicability to public and private services, could not be considered a money bill. 

The state’s answer was two-fold. 

First, it argued that the Lok Sabha Speaker was the final judge of this question as per Article 110(3). This answer, however, seems hard to sustain given the long-held view that courts can engage in some basic form of review to prevent illegality or the colourable exercise of power.

The state’s second response was that the provisions of the bill that do not pertain to the Consolidated Fund of India are merely incidental. But even a bare reading of the bill reveals that such provisions are central to the scheme. The bill hardly seems like a money bill because Article 110 limits the definition to “only” specific cases. A different reading, where all other provisions are seen as “incidental”, would make the point of such a strict definition meaningless. It would result in a situation where all that is required to be a money bill is that some provision pertain to the Consolidated Fund. Any bill could easily satisfy this, thereby calling into question the existence of the Rajya Sabha.

One way to save the law without striking it down entirely might be to sever it. That is, to only allow those provisions addressed toward schemes drawing from the Consolidated Fund. As Arvind Datar argued, the law can either be a money bill or not. It would, thus, either have to fall entirely or exclude provisions such as those involving private actors.

The second challenge

A second challenge involved pre-2016 enrolments undertaken before the Aadhaar Act was passed. The challenge here was straightforward: executive power cannot impact legal rights without statutory force. Here, the state’s answer was that Section 59 of the Act validates pre-2016 enrolments. But the issue is whether Section 59 is valid.

Indian law is considerably tolerant of retroactive legislation (the major exception is criminal law). But the retroactivity that it tolerates is interpretive. For example, in taxation law, where retroactivity has often invited controversy (like in the Vodafone case), retroactive action changes the interpretation of the law. For example, a court may hold that a potato is a vegetable and the executive may later retroactively declare that potatoes are fruits, and therefore subject to different tax liability.

In the Aadhaar case, however, the retroactivity is not in interpreting a legal instrument differently. Rather, it is in imagining a factual scenario which did not exist, namely that pre-2016 enrolments had statutory support. This is a far trickier case to support.

However, the trouble with striking down pre-2016 enrolments is that the Supreme Court blessed such enrolments when they were being undertaken. In an interim order in September 2013, the court refrained from stopping enrolments, instead holding that no person should suffer for not having an Aadhaar card. It reaffirmed this stand in March 2015, and passed an interim order in August 2015 confining Aadhaar to the PDS and LPG schemes. This was judicially expanded in October 2015 to cover various other schemes, but with the clarification that the scheme was voluntary.

The distinction between choice and insistence broke down completely when the court subsequently upheld the mandatory linking of Aadhaar with PAN numbers. It now supported Aadhaar’s usefulness in tackling tax evasion. It will thus be hard for the court, after it allowed the state to frenetically expand enrolments and increase linking, to now strike down pre-2016 enrolments.

The question of exclusion

A third challenge related to exclusions. The claim was that because of the biometric identifiers and infrastructure available, several persons are excluded from the programme. Given that the programme mediates the relationship between citizens and the state, arbitrary exclusion would violate the Article 14 (equal protection) guarantee at two levels: because of exclusions from Aadhaar, and exclusions from the benefits that Aadhaar provides.

The state’s overall answer was that it has increasingly provided exception handling mechanisms for individuals with partial/no biometrics and for locations where enrolment facilities are unavailable.

Legally, the state’s answer does carry merit. The notifications issued do address potential exclusions which could arise, and provide alternatives to limit such exclusions. There may be policy questions regarding exclusions, but the law does not seem to suffer from the vice of arbitrary exclusions.

Much literature on Aadhaar has focused on whether the scheme is voluntary or mandatory. As a legal matter, this issue is only relevant for the exclusion challenge. It has no bearing on other legal issues. Whether the scheme is voluntary or mandatory does not, for example, change whether it is a money bill. 

Similarly, it also does not change challenges relating to rights, because one cannot voluntary surrender rights (one cannot, say, enter into a contract for slavery) or challenges based on excessive delegation by Parliament (because this challenge is based on whether it is Parliament or the UIDAI that is framing policy, and not on what the policy is).

This is the first piece in a four-part series covering the legal challenge to Aadhaar. The second and third part can be read here and here. 

Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla. Ananth Padmanabhan is a former fellow at Carnegie India. His Twitter handle is @ananth1148.

13517 - Besides Rajya Sabha, even president did not have a say on Aadhaar bill: Jairam Ramesh tells SC - First Post

Besides Rajya Sabha, even president did not have a say on Aadhaar bill: Jairam Ramesh tells SC

India PTI May 10, 2018 22:37:48 IST

New Delhi: The decision to tag the Aadhaar law as a money bill has "serious implications" as one half of the Parliament was disabled from making any amendment, the Supreme Court was told. A five-judge constitution bench headed by Chief Justice Dipak Misra was told by senior advocate P Chidambaram, appearing of party colleague Jairam Ramesh, that besides the Rajya Sabha, even the president was denied the opportunity to have a say on the law.

File image of Jairam Ramesh. AFP

"The Bill was passed without the effective participation of the Rajya Sabha and without the assent from the President. The court cannot save a legislation that is fundamentally unconstitutional," he told the bench, which also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

"The implications of passing a non-money bill as a money bill are very serious. One half of the Parliament is virtually disabled from making any amendments. It even denuded the highest constitutional authority of the country, the President of India, of his powers," he said.

Chidambaram also referred to section 57 of the Aadhaar Act and said it empowered any private corporate body to use Aadhaar data for authentication and this has nothing to do with the constitutional scheme dealing with a Money Bill.

He sought setting aside of the Aadhaar law and said Parliament be allowed to have a re-look on it.

Earlier, the court had said it would examine whether the courts can scrutinise the decision of the Lok Sabha Speaker to specify a Bill as a Money Bill, as was done during the passage of the 2016 Aadhaar Act. Chidambaram had said that Lok Sabha members cannot question the decision of the Speaker outside the House, but the courts are empowered to examine the validity of the decision.

The apex court, on 15 December last year, had sought a response from the Centre on the plea of Jairam Ramesh challenging the government's decision to treat Aadhaar bill as a money bill and getting it passed in the budget session last year after rejecting amendments to it by the Rajya Sabha. After issuing a notice to the Centre, the top court had tagged the plea with the clutch of petitions against the Aadhaar scheme itself for hearing today by the constitution bench.

Prior to this, it had said that it was "tentatively not convinced" about the grounds cited by the Congress leader to challenge Lok Sabha Speaker's decision to certify a bill to
amend Aadhaar law as a money bill.

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 was passed by the Lok Sabha on 11 March, 2016. It was taken up in the Rajya Sabha on 16 March, where several amendments were made to it. The bill was then returned the same evening to Lok Sabha which rejected all the amendments proposed by the Upper House and passed it.

A money bill contains provisions for various taxes and appropriation of funds and can be introduced only in the Lok Sabha. The Rajya Sabha cannot make amendments to such bills after passage by the Lok Sabha. The Rajya Sabha can suggest amendments but it depends on the Lok Sabha to accept or reject them. The NDA government allegedly chose to categorise the bill as a money bill as it lacked a majority in the Rajya Sabha, the Opposition had argued.

Updated Date: May 10, 2018 22:37 PM

Tags : #Aadhaar #Aadhaar Act #Dipak Misra #Jairam Ramesh #NewsTracker #P. Chidambaram #Rajya Sabha #Supreme Court

13494 - The passing of Aadhaar as a Money Bill and its immunity from judicial review needs a thorough re-examination by the Supreme Court - First Post

The passing of Aadhaar as a Money Bill and its immunity from judicial review needs a thorough re-examination by the Supreme Court

India Asheeta Regidi May 08, 2018 11:46:46 IST

As the Aadhaar hearings reach their conclusion, a key issue raised last week by the Attorney General for the State was on the passing of Aadhaar as a Money Bill. The Attorney General’s argument is that the decision of the Speaker on whether a given bill is a Money Bill is final and that this is protected from judicial review. This is, in fact, the position held by the Supreme Court in previous cases, making this an important point of concern with the Aadhaar case.

Reducing the Rajya Sabha to a namesake feature

The petitioners to the Aadhaar case have also pointed to a deeper issue, allowing the passing of an Act that is not a Money Bill as one, and protecting this from judicial review, could allow just about any law to be passed as a Money Bill. The effect of this is first, to impact the democratic and federal structure of the Constitution, and second, to reduce the Rajya Sabha to but a namesake feature of the legislative process.

This is more so when one looks at the recommendations that were made by the Rajya Sabha, recommendations which could well have remedied several issues raised by the petitioners were, unfortunately, but legally overlooked since Aadhaar was passed as a Money Bill. These included, for instance, a recommendation to keep Aadhaar voluntary and to drop the controversial Section 57 from the Act.

Improper application of previous rulings

While this issue has been examined several times in the past, now that the Supreme Court’s decision is awaited, it is worth re-examining the issue. For this, there are two key factors: first, is the Aadhaar Act a Money Bill, and second, is the passing of the ordinary bill as a Money Bill exempt from judicial review. While there are multiple issues here, in this article, the previous rulings of the Supreme Court providing immunity from judicial review are looked at. Here, it is argued that these rulings are founded on the improper application of a proper (previous) ruling of the Supreme Court.

Is the Aadhaar Act a Money Bill

To deal with the first issue of whether or not the Aadhaar Act is a Money Bill, Article 110 of the Constitution needs to be looked at, which defines a Money Bill which includes only, all or any of seven listed matters, such as the imposition of the tax. For the Aadhaar Act, this was sought to be established through its Preamble which describes Aadhaar as an Act passed to ensure the targeted delivery of benefits, subsidies, services, etc., the expenditure of which is incurred from the Consolidated Fund of India (CFI). Thus, as per the State, Aadhaar prevents leakages of subsidies, etc. thus reducing the loss of funds from the CFI, and is thus a Money Bill.

A bare reading of the Aadhaar Act, however, indicates that Section 7 is the only provision which bares any relation to a Money Bill. The CFI, in fact, is mentioned only thrice in the whole Aadhaar Act, in the Preamble, in Section 7, and in Section 25, which directs that fees or revenue collected by the UIDAI should be credited to the CFI. Every other provision deals with the establishment of Aadhaar, a nation-wide identity system, based on biometric authentication, and using a centralised database.

Aadhaar Act’s core purpose is to create an identity mechanism

The use of Aadhaar for Section 7 benefits is thus incidental to the main purpose of the Act, which is to create a new identity mechanism. There is no clearer evidence of this than in Section 57 of the Aadhaar Act, which allows anyone, even private entities, to use Aadhaar for any purpose, and further, as per the State, allows Aadhaar to be made mandatory for any purpose. Section 7, as argued by the petitioners, is in no way essential to the Aadhaar Act.

In fact, the Aadhaar Act should have been passed, without Section 7, as an independent, ordinary bill, and Section 7 could have been passed as an independent amendment to other laws, such as the National Food Security Act. This is similar to, say the independent passing of Section 139AA of the Income Tax Act or the amendment to the PMLA Rules for the use of Aadhaar. Arguably, only such a passing of Section 7, independent of the Aadhaar Act, could have been done as a Money Bill.

The Bench’s concern with Section 57 in a Money Bill

The Bench, in the Aadhaar hearings, has expressed concerns with Aadhaar as a Money Bill, in particular with Section 57, observing that such a provision could have no place in a Money Bill. As expected, the State argued the opposite, that every other provision of the Aadhaar Act, or the entire set up of the Aadhaar system, is incidental to Section 7. Further, the State argued that Section 57 is a mere ancillary provision in the Aadhaar Act.

The Bench will thus take the final decision on whether Aadhaar is a Money Bill or not. The observations of the Bench, however, lends some hope that the Aadhaar Act may be ruled to not be a Money Bill, or, at the very least, that Section 57 be struck down. Supposing the Court does rule that Aadhaar is, in pith and substance, not a Money Bill, this leads to the next issue, is its passing as a Money Bill immune from judicial review.

Article 110 and 122 on immunity from judicial review

The State’s argument that it is so immune, derives from Articles 110 and 122 of the Constitution, among others. Article 110 (3) states that the decision of the Speaker on whether or not a bill is a Money Bill, is final (note here that this doesn’t specify if it is final for Courts of law — this NIPFP Working Paper argues that it is not). A Money Bill must be certified as one by the Speaker before it is sent to the President for his assent, indicating that the Aadhaar Act must have received the Speaker’s certificate as well. Secondly, Article 122 prevents the Court from inquiring into the validity of parliamentary proceedings on the grounds of procedural irregularity.

Law on judicial review of parliamentary proceedings

The Supreme Court has, over time, developed the following law in relation to these issues. In cases such as the Special Reference No. 1 of 1964, as well as the 2007 judgment in Raja Ram Pal v. Speaker, Lok Sabha, the Supreme Court held that the while the Court may not review procedural irregularities in parliamentary proceedings as per Article 122, the Article doesn’t exempt review on other grounds. Thus, judicial review is possible on other grounds, in particular, substantive illegality and unconstitutionality. This includes reviewing even the decision of the Speaker.

Judicial review of the passing of an ordinary bill as a Money Bill

However, when applying this rule specifically to the issue of the passing of an ordinary bill as a Money Bill, this was held to be an issue of procedural irregularity, and not substantive illegality. The existing law on the issue, is thus, directly in support of the State’s argument, that the passing of Aadhaar as a money bill is exempt from judicial review.

However, a closer look at the evolution of the law on this issue indicates some issues. These rulings are founded on the 1963 case of Mangalore Ganesh Bedi v. The State of Mysore. In this case, the allegation was that the Act in question was a Money Bill, but was passed as an ordinary bill. The Supreme Court found that the Bill in question was, in fact, an ordinary bill, and went on to observe that even if it wasn’t an ordinary bill, and was a Money Bill, it's passing as an ordinary bill would be a procedural irregularity, immune from judicial review as per Articles 110, 122, and 255.

This observation of the Supreme Court was followed again by it subsequent rulings — in the 2014 case of Mohd Saeed Siddiqui v. State of UP, and thereafter in the 2015 case of Yogendra Kumar Jaiswal v. State of Bihar , both of which were dealing with Acts alleged to be ordinary bills, that were passed as Money Bills. In these cases, the ruling in the Mangalore Ganesh Bedi case was followed, and this was held to be a procedural irregularity and not substantive illegality. In particular, the Raja Ram Pal case and the Special Reference were discussed and held to be not applicable since the factual matrix was different in those cases, unlike the Mangalore Ganesh Bedi case, which deals with the passing of money bills specifically.

The passing of a Money Bill as an ordinary bill and vice versa

Here, it can be observed that a key difference between the Mangalore Ganesh Bedi case, and the Mohd Saeed Siddiqui and Yogendra Kumar Jaiswal cases, was not taken into account by the Court. The former, dealt with an alleged Money Bill passed as an ordinary bill, while the latter cases dealt with the opposite, an alleged ordinary bill passed as a Money Bill. The difference is of particular concern when the procedure of passing the bills is taken into account.

i) Approval of both Houses of Parliament is absent

An ordinary bill must be approved by both Houses of Parliament. A Money Bill, on the other hand, needs to be approved only by the Lok Sabha. While the Rajya Sabha may make recommendations, these are non-binding, and further, its approval is not required for the passing of the bill. Thus, when an alleged Money Bill is passed as an ordinary bill, it has been approved by both houses of parliament as opposed to one. The core requirement, that is the approval of the Lok Sabha, is fulfilled. This, is thus, a mere procedural irregularity. An alleged ordinary bill passed as a Money Bill, however, means that the approval required of the Rajya Sabha was not given. A core requirement, that is that both houses must approve the bill, has not been fulfilled. This is thus more than a procedural ‘irregularity’.

The Rajya Sabha’s severe criticism of this move, describing it as an ‘undemocratic process’, adopted ‘deliberately and mischievously’ to by-pass its approval, must be remembered here. Attaching such mala fides to this move have far more serious consequences than a mere procedural irregularity would have, indicating again that this is more than that, and is worthy of judicial review.

ii) Article 255 of the Constitution does not protect lack of Rajya Sabha’s approval

A second issue with the passing of an alleged Money Bill as an ordinary bill is that a Money Bill must only be introduced into the Lok Sabha on the recommendation of the President. The lack of this recommendation is corrected by Article 255 of the Constitution. This Article holds that missing recommendations or sanctions are to be treated as a procedural irregularity.

Specifically, what the Article says is that when the missing recommendation/sanction for an Act required is that of three specified persons — the Governor, the President, or the Rajpramukh, and the Act in question is assented to, either by that specific person, or the President, then this is to be treated as a procedural irregularity. Note here again, that similar to the passing of a Money Bill as an ordinary bill, the core requirement, that is the recommendation or sanction of the required person, is, overall, given in the form of assent.

Thus, in the case of Mangalore Ganesh Bedi, where this recommendation/sanction was missing, this factor is corrected and protected under this Article. Note, however, that this Article does not similarly exempt the lack of approval of one house of Parliament. The lack of the Rajya Sabha’s approval in passing an ordinary bill as a Money Bill, therefore, cannot be corrected or protected under Article 255.

A woman goes through the process of finger scanning for the Unique Identification (UID) database system, Aadhaar, at a registration centre in New Delhi, India. Image: Reuters

Incorrect application of the Mangalore Ganesh Bedi ruling

From this, it can be observed that the Supreme Court’s ruling in Mangalore Ganesh Bedi, holding that the passing of an alleged Money Bill as an ordinary bill, is a procedural irregularity, is a correct position. However, the adoption of this ruling to hold that the opposite in subsequent rulings, the passing of an alleged ordinary bill as a money bill, without taking these differences into account, is incorrect. Further, the subsequent rulings cite the same three articles — Articles 110, 122, and 255 to rule this, without taking into account that Article 255 does not apply there.

For instance, in the Mohd Saeed Siddiqui case, it was held that Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only, as the third criteria protecting the passing of an ordinary bill as a Money Bill from judicial review. Clearly, this doesn’t take into account the very specific recommendations/sanctions referred to in Article 255, which bear no relation to the lack of approval of the Rajya Sabha.

Based on this, it can be argued that the rulings of Mohd Saeed Siddqui, and Yogendra Kumar Jaiswal, is an incorrect position of the law. Further examination was required based on the specific facts of the case, which is missing in these cases.

Mangalore Ganesh Bedi ruling was just an observation

A Working Paper by the National Institute of Public Finance and Policy, on Judicial Review and Money Bills (summary here), comes to the same conclusion but on different grounds. The Paper points out that in Mangalore Ganesh Bedi, the Court had held that the Act in question was, in fact, an ordinary bill, unlike the allegations made that it was a Money Bill. Based on this, they argued that the Court’s additional statement, that had it been a Money Bill passed as an ordinary bill, the issue was a procedural irregularity and immune from judicial review, is obiter (just an observation), and not ratio (a binding rule of law).

The adoption of this statement in the subsequent judgments without analysis or discussion, they argue, is thus incorrect. This argument of the NIPFP Paper, in fact, is reminiscent of those made in relation to the Kharak Singh and MP Sharma case in relation to the Right to Privacy judgment, where it was argued that statements made in these cases that the right to privacy is not a fundamental right, were obiter and not ratio. As is known, both these cases were finally overruled in the Right to Privacy judgment, as laying down an incorrect position of law.

The need for re-examination by the Court

The issue of whether the passing of an ordinary bill as a Money Bill is exempt from judicial review thus needs to be thoroughly analysed and examined by the Supreme Court. This is particularly when the impact of an Act like Aadhaar is taken into consideration, one that affects people’s fundamental rights, including the right to privacy as well as the right to equality through large-scale exclusion.

Knowing that the Rajya Sabha’s involvement may have prevented this, makes the need for the scrutiny of both houses that much more important. It is hoped that the Supreme Court will find that the passing of a bill like Aadhaar, with such a bare minimum a connection to a Money Bill, as a Money Bill, is more than a mere procedural irregularity, and merits the review of the Court.

The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.

You can read our complete coverage of the Aadhaar Supreme Court case below:

Aadhaar Hearing: Attorney General argues that Aadhaar is fundamentally a money bill to which Section 57 is an ancillary provision

Why SC needs to look into technical evidence of Aadhaar’s surveillance capabilities

Lack of governmental ownership of CIDR’s source code can have serious consequences

Will State give citizens rights only if they agree to be tracked forever, asks lawyer Shyam Divan

Coalition for Aadhaar: A collective of private companies wants to ensure that Aadhaar ID and related services continue to be offered

Petitioners argue on centralisation of data and challenge Aadhaar’s claims on savings

Petitioners argue for a voluntary ID card system that does not collect user data

Petitioners argue that receipt of govt benefits cannot be at the cost of compromising fundamental rights

Aadhaar is architecturally unconstitutional, argue the petitioners

Petitioners argue that Aadhaar violates dignity by objectifying and depersonalizing an individual

Petitioners seek compensation for starvation deaths and extension of March 31st deadline

Section 7 exception in Supreme Court’s interim order greatly affects people’s constitutional rights

Entire Aadhaar project is beyond the stated objectives of Aadhaar Act, argue petitioners

Petitioners conclude their arguments on 'the number of the beast' Aadhaar, highlighting various issues

Aadhaar hearing: Political liberties cannot be foregone for economic and social justice, states the Bench

Aadhaar hearing: UIDAI’s presentation discusses Aadhaar enrolment, updation and authentication processes in detail

Aadhaar hearing: Supreme Court expresses concerns with data breaches, Aadhaar security and profiling

Aadhaar hearing: Petitioners question UIDAI on verification of residency requirement, de-duplication rejections and authentication failures

Aadhaar hearing: Attorney General argues that pervasive collection of fingerprints meets proportionality requirements

Aadhaar hearing: Bench criticises the argument that Aadhaar can prevent bank frauds and terrorists from acquiring mobile numbers

Aadhaar hearing: Additional Solicitor General argues Aadhaar-PAN linkage enables deduplication, prevents fraud and widens the tax base

Aadhaar hearing: Not necessary to prove least possible invasion of privacy, argues Additional Solicitor General

Aadhaar hearing: Counsel argues that Aadhaar is more secure than a data protection law, SC disagrees

Aadhaar hearing: Supreme Court questions why both the right to privacy and right to food cannot be secured under the Constitution

Aadhaar hearing: Senior counsel Rakesh Dwiwedi argues that the UIDAI is constantly improving and upgrading its systems

Aadhaar hearing: Aadhaar has the support of two governments, argues the State

Aadhaar hearing: The Act is a well balanced law of which a few provisions should be struck down, argues advocate Gopal Sankaranarayanan

Updated Date: May 08, 2018 11:46 AM

Tags : #Aadhaar #Aadhaar Act #Aadhaar Bill #Aadhaar Special #CriticalPoint #Income Tax #Money Bill #Rajya Sabha

13454 - Aadhaar Hearing: Attorney General argues that Aadhaar is fundamentally a money bill to which Section 57 is an ancillary provision - First Post

Aadhaar Hearing: Attorney General argues that Aadhaar is fundamentally a money bill to which Section 57 is an ancillary provision

News-Analysis Asheeta Regidi May 03, 2018 14:36 PM IST

Comment 0

Tweet

On Day 35 of the Aadhaar hearings, advocate Zoheb Hossain concluded his arguments on the issue of the furtherance of socio-economic rights via Aadhaar. He also discussed the issues of disclosure of information in the interest of national security, the filing of complaints by the Unique Identification Authority of India (UIDAI) only under the Aadhaar Act, and on the Aadhaar-PAN linkages being applicable to individuals only and not to corporates. 

The Attorney General then continued his arguments on the money bill issue, arguing that Aadhaar was, at its core, a money bill and that Section 57 was just an ancillary provision.

Aadhaar advances socio-economic rights

Advocate Zoheb Hossain continued his arguments on behalf of the UIDAI and the State of Maharashtra, arguing on the issue of advancement of socio-economic rights and their harmonisation with civil and political rights. Aadhaar, he argued, was a project that ensures people’s socio-economic rights. He further pointed to the Justice Wadhwa Committee Report on the public distribution system.

Next, he pointed to the case of D.K. Trivedi vs State of Gujarat, in which the Supreme Court observed that the validity of a statute conferring discretionary powers on the executive or an administrative authority, could not be judged on the assumption that the said authority would act in an arbitrary manner in the exercise of that discretion.

He further made reference to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), and the reference made to them in previous judgments of the Supreme Court like in Unni Krishnan vs State of Andhra Pradesh. He argued, based on the ICCPR, that all human rights are equally important, indivisible and interconnected. Socio-economic rights are thus as important as civil and political rights.

PIL on the right to privacy?

In order to judge the proportionality of restrictions imposed on privacy, he argued that their reasonableness would have to be considered from the perspective of the general public and not that of an individual. At this juncture, he also questioned how a public interest litigation could be filed for the violation of the right to privacy, when privacy is essentially a personal right, and none of the petitioners were alleging a violation of their privacy.

In furtherance of this, he cited a US congressional report on the development of the Social Security Number (SSN), which describes it as a quasi-universal personal identification number, used for a variety of purposes such as identifying convicted criminals, obtaining a loan or insurance, etc. He argued that individuals in the US could be denied benefits if they fail to produce their SSN. As an example, he cited a US case where the firing of an employee for failing to produce her SSN was not seen as a violation of her privacy.

Disclosure of information for national security

Next, arguing that there were adequate safeguards for records under the Aadhaar Act, he cited Section 33(2) of the Aadhaar Act, which allows the disclosure of information in the interest of national security. He pointed to the safeguard under the proviso of this section, which requires every such direction under it to be reviewed by an Oversight Committee. He argued that the Aadhaar Act prescribes more oversight than even that prescribed under the People's Union for Civil Liberties (PUCL) case on telephone tapping. On the issue of national security, he further argued that a party could not expect strict adherence to the principles of natural justice during times of emergency.

The Attorney General argued that Aadhaar is at its core a money bill. 

Filing of complaints by the UIDAI only

He further argued on the challenge to Section 47 of the Aadhaar Act, which prevents the people from filing a case under the Act. He argued that since the person could file a complaint before the UIDAI through its grievance redressal system, he wouldn’t be left remedy-less. He argued that it was best left to the UIDAI to file complaints since they have a better understanding of the highly technical nature of the Aadhaar system. He also pointed to the judgment of the Supreme Court in State of NCT v. Delhi,, where a similar provision under the Mines and Minerals (Development and Regulation) Act was discussed.

Further, he argued that the UIDAI may authorize a person to file a complaint if they felt that it was genuine since there was no bar to do this under the Aadhaar Act. Additionally, there were remedies available under the Information Technology Act, such as for identity theft and the violation of privacy, for actors outside the CIDR. For the CIDR, there were adequate provisions under the Aadhaar Act.

Promoting redistributive justice via Aadhaar-PAN

Next, he argued that the purpose of the Aadhaar Act as well as Section 139AA of the Income Tax Act on Aadhaar-PAN linking is to promote redistributive justice and ensure substantive equality, along with furthering the dignity of the individual. He argued that the term ‘distribute’ under the Directive Principle of State Policy under Article 39(b) of the Constitution, includes revenue leakage control in furtherance of distributive justice. He also quoted the Puttaswamy judgment, arguing that rights of an individual could be curbed in the interest of prevention of tax evasion, curbing black money and prevention of money laundering.

He further argued that the Aadhaar Act and the Income Tax Act were stand-alone acts, and it cannot be said that the Parliament cannot, in the exercise of its legislative wisdom, make Aadhaar mandatory by way of an amendment. This argument, further, had already been decided by the Supreme Court in the Binoy Viswam case. The objects of the two statutes, he argued, are different, and they could run parallel to each other, with no intersection and thus, no conflict.

Aadhaar-PAN can resolve dummy directors and fake companies

Next, turning to the issue of why only individuals had been asked to link their Aadhaar with PAN, he argued that the rule for equality did not mean that the State has to strike all evils at the same time. Companies and individuals, he argued, were treated differently under the Income Tax Rules.

Further, the linking for individuals will also cure the evils vis-à-vis companies. For instance, under the Companies Act, a person can be a director for only 20 companies at a given time. The linking of Aadhaar with PAN, he argued, would allow the verification of whether a genuine person is the director of the companies. This could thus enable the deduplication of Director Identification Numbers. The genuineness of the companies can also be verified this way. With this, the counsel concluded his arguments.

Aadhaar is at its core a money bill

The Attorney General then commenced his arguments on the issue of money bill. He argued that Aadhaar was, in pith and substance, a money bill, and ancillary provisions in relation to appeal, revision, etc., which are needed to make the Act complete, do not fall outside the ambit of Article 110 of the Constitution (which defines a money bill). He argued that the term ‘targeted delivery of subsidies’ contemplated the expenditure of funds. This expenditure was to the tune of thousands of crores from the Consolidated Fund of India. This, he argued, in itself brought the Aadhaar Act under the ambit of a ‘money bill’ under the Constitution of India.

He argued that even though the law has ancillary provisions, the main aim of the Act was the delivery of services and benefits. He argued that Sections 7, 24 and 25 brought the Aadhaar Act under the ambit of a money bill. Not a single provision, he argued, was unnecessary or unrelated to the main purpose of the Act.

Section 57 is an ancillary provision

The Bench here pointed to Section 57, describing the allowing of body corporates and individuals to use Aadhaar as a concern with the link of the Act to the Consolidated Fund of India. This provision, they stated, did not involve the distribution of benefits and subsidies under the Aadhaar Act. To this, the Attorney General argued that the Section merely allows the existing infrastructure to be used for other purposes so long as the purposes are legitimate. Thus, this was just another ancillary provision. He further argued that the Court could judge the validity of a contract for the use of Aadhaar under this Section only if it was before them for consideration.

He further pointed to Article 110 of the Constitution of India, which defines a money bill and includes clause (g), which allows a money bill to include provisions on matters incidental to any of the matters which are the primary subject of a money bill. When the Bench pointed out that under Article 110, a money bill could ‘only’ involve the matters as listed from clauses (a) to (g), the Attorney General argued that the term ‘only’ implied that the matters listed under these clauses could only be dealt with as a money bill. The Bench, here, remarked that such an interpretation would constitute rewriting the Constitution.

The arguments will continue 3 May.

Sources of arguments include live-tweeting of the case by SFLC.in and Prasanna S, and LiveLaw Reports.

You can read our complete coverage of the Aadhaar Supreme Court case below:

Why SC needs to look into technical evidence of Aadhaar’s surveillance capabilities

Lack of governmental ownership of CIDR’s source code can have serious consequences

Will State give citizens rights only if they agree to be tracked forever, asks lawyer Shyam Divan

Coalition for Aadhaar: A collective of private companies wants to ensure that Aadhaar ID and related services continue to be offered

Petitioners argue on centralisation of data and challenge Aadhaar’s claims on savings

Petitioners argue for a voluntary ID card system that does not collect user data

Petitioners argue that receipt of govt benefits cannot be at the cost of compromising fundamental rights

Aadhaar is architecturally unconstitutional, argue the petitioners

Petitioners argue that Aadhaar violates dignity by objectifying and depersonalizing an individual

Petitioners seek compensation for starvation deaths and extension of March 31st deadline

Section 7 exception in Supreme Court’s interim order greatly affects people’s constitutional rights

Entire Aadhaar project is beyond the stated objectives of Aadhaar Act, argue petitioners

Petitioners conclude their arguments on 'the number of the beast' Aadhaar, highlighting various issues

Aadhaar hearing: Political liberties cannot be foregone for economic and social justice, states the Bench

Aadhaar hearing: UIDAI’s presentation discusses Aadhaar enrolment, updation and authentication processes in detail

Aadhaar hearing: Supreme Court expresses concerns with data breaches, Aadhaar security and profiling

Aadhaar hearing: Petitioners question UIDAI on verification of residency requirement, de-duplication rejections and authentication failures

Aadhaar hearing: Attorney General argues that pervasive collection of fingerprints meets proportionality requirements

Aadhaar hearing: Bench criticises the argument that Aadhaar can prevent bank frauds and terrorists from acquiring mobile numbers

Aadhaar hearing: Additional Solicitor General argues Aadhaar-PAN linkage enables deduplication, prevents fraud and widens the tax base

Aadhaar hearing: Not necessary to prove least possible invasion of privacy, argues Additional Solicitor General

Aadhaar hearing: Counsel argues that Aadhaar is more secure than a data protection law, SC disagrees

Aadhaar hearing: Supreme Court questions why both the right to privacy and right to food cannot be secured under the Constitution

Aadhaar hearing: Senior counsel Rakesh Dwiwedi argues that the UIDAI is constantly improving and upgrading its systems

Aadhaar hearing: Aadhaar has the support of two governments, argues the State

Aadhaar hearing: The Act is a well balanced law of which a few provisions should be struck down, argues advocate Gopal Sankaranarayanan

The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.

#Aadhaar Act #Aadhaar Card #Aadhaar Special #Constitution Of India #Justice Wadhwa Committee Report #Money Bill #NewsTracker #UIDAI #Zoheb Hossain

Updated Date: May 03, 2018 14:36 PM

Also See

• Aadhaar hearing: The Act is a well balanced law of which a few provisions should be struck down, argues advocate Gopal Sankaranarayanan
   Aadhaar hearing: Senior counsel Rakesh Dwivedi argues that balancing between rights is a symbol of justice
   Aadhaar hearing: Senior counsel Rakesh Dwivedi argues that the UIDAI is constantly improving and upgrading its systems
   Aadhaar hearing: Aadhaar has the support of two governments, argues the State

13453 - Aadhaar Bill a money bill: AG says Speaker’s decision final - TNN

Aadhaar Bill a money bill: AG says Speaker’s decision final

Dhananjay Mahapatra | TNN | May 4, 2018, 02:39 IST

NEW DELHI: The Centre on Thursday sought dismissal of Congress leader Jairam Ramesh’s petition challenging the Lok Sabha Speaker’s decision to categorise the Aadhaar Bill as a money bill by arguing that the Speaker’s decision was final and not open to judicial scrutiny. 

Ramesh’s counsel P Chidambaram had said the Speaker arbitrarily decided to categorise the Aadhaar Bill as a money bill to deprive Rajya Sabha, where the ruling NDA did not have majority, from amending the bill. 

“Why should the House of Elders be shut off from suggesting changes in the law? Why should the President be deprived of giving his suggestions by marking Aadhaar as a money bill?” he had asked. Attorney general K K Venugopal met these arguments by citing Article 110(1), which deals with use of Consolidated Fund money, which was utilised to create Aadhaar identity for every Indian and the required infrastructure, and said this warranted the bill to be categorised as a money bill. 

Moreover, constitutional provisions and parliamentary rules and tradition left the categorisation entirely and exclusively to the Speaker, whose decision was final and non-justiciable, the AG argued. However, a bench of CJI Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan put a caveat by saying it was open to judicial scrutiny if gross irregularity was pointed out in the procedure to categorise a bill as money bill.

Venugopal said of the estimated expenditure of Rs 13,663 crore for implementation of Aadhaar scheme up to the 2016-17 financial year, a sum of Rs 6,844 crore had been spent for payments towards enrolments, logistic operations, Aadhaar Sampark Kendras, technology infrastructure and operations. Another Rs 408 crore was spent towards establishment cost, he added.

The AG said the petitioners had argued that Aadhaar would be used to launch surveillance on citizens. “What is alleged is that the government would enter into a conspiracy with UIDAI to put political opponents and other prominent citizens under surveillance by committing offence under the Aadhaar Act, which punishes storage of activities or sharing of data following authentication of identification through Aadhaar,” he said.

“It was totally wrong on the part of the petitioners to argue that Aadhaar has made citizens live in a totalitarian regime or in a concentration camp where they are electronically leashed. A dog gets leashed. No one can argue that a democratically elected and constitutionally formed government can violate law to leash its citizens, who are the ultimate holders of power in a democracy,” the AG added.

The Centre and the UIDAI concluded their arguments on Aadhaar and the petitioners will present their reply from Tuesday. 

13448 - What is a Money Bill ? - by Anupam Saraph

I’m reproducing Article 110 of the Constitution of India that defines a Money Bill.

Anupam Saraph

110. (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:— 

(a) the imposition, abolition, remission, alteration or regulation of any tax; 

(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India; 

(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund; 

(d) the appropriation of moneys out of the Consolidated Fund of India; 

(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure; 

(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or 

(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f). 

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes. 

(3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final. 

(4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under article 109, and when it is presented to the President for assent under article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill. 

There is no way the Aadhaar Act can pass the test of a Money Bill. I’m listing some sections that destroy its ability to be deemed a Money Bill.

4(3) declares the use of Aadhaar as proof of identity of the Aadhaar number holder for any purpose. This is not a provision dealing with all or any of Article 110(1)(a) to (g).

The payment of moneys into or the withdrawal of moneys from the Consolidated Fund of India or the  expenditure charged on the Consolidated Fund of India is not done to beneficiary accounts but is appropriated to various government budget heads. 

The transfer from various budget head accounts to beneficiaries is not a provision dealing with all or any of Article 110(1)(a) to (g).

7 requires use of Aadhaar for establishing identity of an individual as a condition for receipt of a subsidy, benefit or service. This is not a provision dealing with all or any of Article 110(1)(a) to (g).

8 performs authentication of the Aadhaar number of an Aadhaar number holder submitted by any requesting entity, in relation to his biometric information or demographic information. This is not a provision dealing with all or any of Article 110(1)(a) to (g).

45, 46 and 47 take away rights of persons to file complaints and seek redressal. This is not a provision dealing with all or any of Article 110(1)(a) to (g).

54 gives sweeping powers that do not relate to a provision dealing with all or any of Article 110(1)(a) to (g).

57 is about the use of the Aadhaar for purposes of establishing identity. This is not a provision dealing with all or any of Article 110(1)(a) to (g).

Anupam

______________________________

13444 - SC questions government's justification for passing Aadhaar Act as Money Bill - The Hindu

SC questions government's justification for passing Aadhaar Act as Money Bill

Krishnadas Rajagopal

NEW DELHI, MAY 02, 2018 17:23 IST

MORE-IN

Aadhaar and cash transfers

Attorney General says the Act may have several “ancillary provisions”, but taken in its entirety, the Aadhaar Act comes within the ambit of the definition of Money Bill under Article 110 of the Constitution.

The Supreme Court on Wednesday questioned the government's justification for passing the Aadhaar Act as a Money Bill.

Countering the Central government's argument that the sole intent of the Aadhaar Act is to act as a weapon for delivering subsidies to targetted beneficiaries, the Constitution Bench led by Chief Justice of India Dipak Misra pointed to Section 57 of the Act.

This provisions contemplate the use of the Aadhaar card as an identification document not only by the government but also by "any body corporate or person".

"A body corporate? That is as far as you can go away from the concept of a Money Bill," Justice Chandrachud challenged Attorney General K.K. Venugopal.

Section 57 says “nothing contained in this Act [Aadhaar Act] shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person...”

Mr. Venugopal submittted that the Act's Preamble itself encapsulated its objective as a legislative “tool” to provide “good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services”. The expenditure for these welfare activities would be drawn from the Consolidated Fund of India.

Mr. Venugopal said the Act may have several “ancillary provisions”, but taken in its entirety the Aadhaar Act came within the ambit of the definition of Money Bill under Article 110 of the Constitution.

The Attorney General countered that the Act contemplated the plight of 300 million people in the country living below the poverty line. “Money has to come necessarily from the Consolidated Fund of India to cover the expenditure of the delivery of targetted subsidies. Not a single provision in the Act is unneccessary or unrelated to the main purpose/pith and substance of the Act, which is giving subsidies,” he argued.

Jairam Ramesh's petition

Mr. Venugopal was countering arguments raised in a petition by Rajya Sabha member Jairam Ramesh that the Aadhaar Act of 2016 was passed as a Money Bill to “bypass the scrutiny of the Rajya Sabha.”

Mr. Ramesh, represented by senior advocate P. Chidambaram, had argued that a Bill is declared as a Money Bill only in six specific circumstances or matters incidental to them as enumerated in Article 110. The Aadhaar law does not relate to any of these circumstances. The petition had termed the passage of the Aadhaar law a “constitutional fraud”.

On March 11, the Aadhaar Bill was passed by the Lok Sabha after the Speaker ruled it as a 'MoneyBill'. It was then passed to the Rajya Sabha which, on March 16, returned the Bill with five amendments moved by Mr. Ramesh. These recommendations were rejected by the Lok Sabha, which passed the law called Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016.

Mr. Venugopal referred to Sections 7, 24 and 25 of the Aadhaar Act to show how closely the objective of the statute is linked to the Consolidated Fund. Section 7 says that the Centre or a State may use Aadhaar card to establish the identity of a person to provide him subsidy, benefit or service for which the expenditure is incurred from the Consolidated Fund.

Section 24 says that Centre could make grants of money to the authorities under the Act for the purpose of providing subsidies. Section 25 says that fees or revenue collected by the authority under the Aadhaar Act should be credited to the Consolidated Fund.

12977 - No March 31 deadline, mandatory Aadhaar linking postponed till SC's final verdict - News Minute

No March 31 deadline, mandatory Aadhaar linking postponed till SC's final verdict

The extension for mandatory Aadhaar linking will not apply to availing services and subsidies.

• TNM Staff
  Follow @thenewsminute
  
  Tuesday, March 13, 2018 - 16:48 

Bringing temporary relief to Indian residents, the Supreme Court on Tuesday announced that the deadline for linking mobile numbers and bank accounts has been extended till the top court decides delivers its judgment on a batch of petitions challenging the constitutional validity of Aadhaar.

The extension does not apply to those availing social schemes such as MGNREGA.

This deadline also been extended for those who apply for passports.

The order came as senior counsel Arvind Datar, appearing for one of the petitioners, told the court that passport issuing authorities have made submission of Aadhaar mandatory for issuance of passports. At this point, Attorney General KK Venugopal sought to clarify that this requirement of Aadhaar was only for issuance of 'tatkal' passports. The court order also extended the deadline for the issuance of passports.

A five-judge bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan passed the interim order.

The Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 is a money bill of the Parliament of India.

It was passed on 11 March 2016 by the Lok Sabha.  

It provides legal backing to the Aadhaar unique identification number project. 

In court on Tuesday, former Finance Minister and advocate P Chidambaram argued that a Bill which was passed wrongly as a Money Bill should be struck down immediately as Federalism is the basic feature of Constitution. A Money Bill, unlike any other bill, can be passed by the Lok Sabha alone. 

This was part of the court’s final hearing in the matter of K S Puttaswamy vs Union of India, along with 28 other petitions. 

The current deadline for linking of bank accounts, mobile phone connections, and other services with Aadhaar was March 31, and this had been extended by the apex court on December 15 last year. 

In August 2017, the right to privacy was upheld unanimously by a nine-judge bench in 2017. Privacy and denial of rights due to Aadhaar are two of the major considerations of the Aadhaar project.

There are many privacy concerns around Aadhaar, after a story was published in The Tribune. The reporter, Rachna Khaira, stated that she paid Rs 500 through Paytm, and in 10 minutes "an 'agent' of the group running the racket created a 'gateway' for this correspondent and gave a login ID and password. You could enter any Aadhaar number in the portal, and instantly get all particulars that an individual may have submitted to the UIDAI.

With IANS inputs

12954 - Aadhaar Hearing [Day 15] Introduction Of Aadhaar Bill As Money Bill Unconstitutional: Datar, Chidambaram - Live Law

Aadhaar Hearing [Day 15] Introduction Of Aadhaar Bill As Money Bill Unconstitutional: Datar, Chidambaram

BY: MEHAL JAIN MARCH 7, 2018 10:43 PM

Datar expressed the need for review of the judgment in Binoy Viswam (upholding the mandatory linkage of Aadhaar with PAN card in view of Section 139AA of the IT Act, 1961).

On Day 15 of the Aadhaar hearing, senior counsel Arvind Datar, appearing on behalf of the petitioners, has advanced that the introduction of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016 as a Money Bill was unconstitutional and that it could have, at the most, been treated as a Finance Bill which required the approval of the Rajya Sabha.

Referring to Article 110(3) in so far as it provides that the decision of the Speaker of the Lok Sabha as to whether a Bill is a ‘Money Bill’ shall be final, he submitted that the said provision does not exclude the scope of judicial review.

On Day 1 of the Aadhaar hearing, senior counsel P Chidambaram had referred the bench to the 2007 judgment in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, wherein it was observed, “Article 212 seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.”

Further, on that occasion, in view of the 2014 judgment in Mohd. Saeed Siddiqui v. State of UP, Chidambaram and Justice Chandrachud had agreed that the decision of the Speaker on whether a Bill is a Money Bill shall be final for the members of the house of the legislature, but the same may be called into question in the courts on account of an illegality.

Reverting to his argument from yesterday regarding Rule 9 of the PMLA Rules (as amended in 2017) which requires linkage with Aadhaar number for existing bank accounts and mandates the same for new accounts, he said that the consent of the account holder that is sought to be procured in the form is of no avail in view of the said Rules, the noncompliance with which renders their bank account inoperable.

He also indicated the order dated October 15, 2015 of the apex court in Justice KS Puttaswamy wherein the court had limited the mandate of Aadhaar to PDS, LPG Distribution scheme, MGNREGA, National Security Assistance Programme, PM Jana Dhana Yojana and Employees’ Provident Fund Scheme and declined the permission in that behalf to RBI, IRDAI and TRAI.

Stating that the Aadhaar scheme was envisaged only in respect of ‘Subsidies, Benefits and Services’ the receipt or expenditure of which is credited or incurred on the Consolidated Fund of India, Datar perused the Statement of Objects and Reasons of the Aadhaar Act. Justice DY Chandrachud also observed that it is prima facie limited in its applicability as under Section 7.

At a later stage, Datar also criticised the mandate of Section 7. He cited the instance of even Tirupati temple requiring Aadhaar.

“What is the issue in Aadhaar being required at several places? Like in the case of driver’s license”, inquired Justice Ashok Bhushan.

“At the entrance to the airport, one is required to furnish an ID proof. But it would be unreasonable to impose a condition that one cannot enter the airport without a driver’s license,” responded Datar.

Thereupon, Datar indicated Parliament speeches (including that of Congress leader Jairam Ramesh) recommending an amendment in the Act of 2016 to the effect of deleting Section 57, which allows even nonstate entities to mandate Aadhaar. Justice Chandrachud observed that by virtue of Section 57, permitting even private entities require the Aadhaar number, runs contrary to the concept of Money Bill. Justice Chandrachud also noted that there is no state interest involved in allowing private agencies to require Aadhaar.

Further, the senior counsel submitted, in context of the proviso to Section 57 making the mandate of Aadhaar by state and non-state entities also subject to the requirements of informed consent, counselling and data protection as per Section 8 and Chapter VI, that the concept of consent is illusionary by virtue of statutory provisions such as the PMLA Rules. He advanced that ‘consent’ has to be understood as ‘consensus ad idem’ as under the Indian Contract Act of 1872.

Datar cited the argument in the American Congress against the Social Security Number becoming the unique ID proof in all states in the USA as well as the backdrop in which the Privacy Act of 1974 was introduced.

Thereupon, he reiterated the arguments advanced earlier by other senior counsels- excessive delegation on account of definitions of bio-metric and core bio-metric information being inclusive and not exhaustive in the Act of 2016; Aadhaar scheme acting as an instrument of exclusion from social security schemes by virtue of Section 7 and the probabilistic nature of bio-metrics [reference made to Swaraj Abhiyan, (2016) 7 SCC 498]; Regulation 14 of the Enrolment and Update Regulations of 2016 (rejection of Enrolment) and Regulations 27, 28 and 29 (omission and deactivation) being arbitrary.

He expressed the need for review of the judgment in Binoy Viswam (upholding the mandatory linkage of Aadhaar with PAN card in view of Section 139AA of the IT Act, 1961).Further, he submitted that while the NIA Bill was being considered, the Executive power of the Union under Article 73 could not be said to be absolute. In the same context, he also cited the 1955 judgment in Rai Saheb Ram Jawaya Kapur v. State of Punjab.

The senior counsel on Wednesday drew the attention of the bench to the earlier interim orders passed by the apex court in connection with the Aadhaar controversy. On September 23, 2013, it was ruled that no person shall be made to suffer for not possessing a Unique Identification Number  even if the same has been mandated by any government authority and that the Aadhaar card shall be issued only after due inspection so as to not issue the same to illegal immigrants. On March 24, 2014, in SLP (Crl.) 2524/2014, it had been reiterated that no one shall be deprived of any services or social schemes for the want of Aadhaar and all government authorities had been directed to accordingly modify any circulars or notifications issued by them. The order dated September 23, 2013 had been reaffirmed on March 16, 2015. Thereafter, on August 11, 2015, a 3 judge bench had held that the Union of India shall publicise via both print and electronic media that Aadhaar is not mandatory for any social security schemes other than Public Distribution System scheme and the LPG distribution scheme. Finally, on October 15, 2015, a 5-judge bench of the top court had added the MGNREGA scheme, the National Security Assistance Programme, the PM Jan Dhan Yojana and Employees’ Provident Fund Scheme to the earlier list of two schemes. Further, it was held that the order dated September 23, 2013 shall continue to be in force and Aadhaar shall be purely voluntary till such time the matter is finally decided by the court one way or the other.

He submitted that after the coming into force of the Act of 2016, it was pertinent that the government and other civil authorities seek a variation of the apex court orders to validate the 139 circulars and notifications mandating Aadhaar. He remarked that in the jallikattu and the highway liquor ban cases, the apex court orders had been adhered to, while in the present case, there has been contempt.

Voicing the need for provisions for deletion of sensitive, personal information and for opting out, he concluded his arguments, citing the 1952 judgment in State of West Bengal v. Anwar Ali Sarkar on the reasonableness of a statue.

Thereupon, senior counsel P Chidambaram commenced his submissions on the subject of Money Bill.

Starting with Article 107 on the introduction and passing of bills, he proceeded to discuss financial bills and money bills as a subset thereof with reference to Articles 110 and 117.

In view of the fact that a Money Bill may only be introduced in the Lok Sabha and on account of the curtailment of the powers of the Rajya Sabha and the President in respect thereof, he submitted that the relevant provision may be accorded a strict interpretation.

He proceeded to explain the substantive difference between Articles 110 and 117 based on the use of the term ‘only’.

Further, he discussed the exclusion of jurisdiction of the courts by making reference to Article 74(2), clauses (2) and (3) of Article 163 and Article 363.

He mentioned Article 103 providing that the decision of the President on the disqualification of an MP shall be final but requiring the President to obtain the opinion of the Election Commission before deciding on the disqualification, in context of Article 110(3) which renders as final the decision of the Lok Sabha Speaker on the question of Money Bill.

Extension of March 31 deadline for mandatory linkage with bank accounts, mobile phones and other services

In view of the Attorney General’s recommendation that the bench can consider the question of extension in the last week of March, Justice Chandrachud observed that in the event the deadline is extended towards the end of the month of March, the financial institutions shall continue to proceed in uncertainty on the assumption that March 31 is the deadline.

The bench agreed to deliberate on the issue of extension after the conclusion of Chidambaram’s arguments.

It may be noted that by interim order dated December 15, 2017, the Supreme Court had set the March 31 deadline.

The hearing shall resume on next Tuesday