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Aadhaar Hearing Day 16: Chidambaram continues arguments on money bill

As the Constitution Bench re-assembled to continue the hearing in the Aadhaar case today, Senior Advocate P.Chidambaram continued his submissions on behalf of petitioner Jairam Ramesh, challenging the Aadhaar Act on the ground that it was incorrectly certified as a Money Bill.

He read out relevant portions from Subcommittee on Judicial Accountability v. Union of India, 1991 4 SCC 699. He then explained the difference between various phrases such as final, conclusive, and “shall not be questioned in any court”. He also referred to the S.R. Bommai case where despite finality of the satisfaction of President to proclaim an emergency or President rule, such satisfaction was held to be subject to judicial review. Reference was also made to Kihoto Hollohan case where “final” is distinguished as beyond appeal, but not beyond review.

He submitted that any bill incorrectly passed as a Money Bill strikes at the root of one of the basic features of the Constitution, i.e., federalism. He referred to the judgment in Rajarampal v Speaker with regard to the difference between procedural irregularity and substantive illegality. Chidambaram submitted that validity of any proceeding in the Parliament on grounds of irregularity of procedure cannot be looked into by the court. However, illegality can be a ground for the courts to exercise judicial review.

The bench then asked Chidambaram to read some excerpts in the case of Mangalore Ganesh Beedi Works vs. State of Mysore, AIR 1963 SC 589. Chidambaram submitted that the above case doesn’t discuss anything but only makes a conclusion that the validity of the Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Art. 202 of the Constitution.

The discussion then moved on to the decision in the case of Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha. Chidambaram argued that if the procedure is illegal and unconstitutional, it will be open to scrutiny in the court of law. he then referred to various judgments with regard to the powers of the Rajya Sabha. The Court then rose for lunch.

When the Court resumed after lunch, Chidambaram continued with his submissions on Money Bill. He submitted that the concept of a money bill is an ancient one and went into the history of it. He emphasized the restricted domain which constitutes a money bill.

In this context, he referred to the Constitution of Ireland and the definition of money bill contained therein with a focus on the use of word ‘only’. He then referred to the debate in the Rajya Sabha on Aadhaar bill. He said that the question why it was termed as money bill was raised by an MP during the course of the discussions. He said that the petitioner, Jairam Ramesh, had moved for amendments in the bill which were adopted in Rajya Sabha. However, these amendments were not considered by the Lok Sabha and it was passed in its original form. He then handed over a compilation which lists the bills which were money bill.

He then referred to the provisions of the Aadhaar bill. He read the long title and Preamble and submitted that the apparent object of the bill is to make a law that will fit into Article 110(1)(c) & (g) of the Constitution. He then moved to Section 7 & 8(4) and Section 23(2)(h) of the Aadhaar Act and submitted that assuming the act was for benefits, words “and other purposes” have been introduced insidiously in the provision. Further, “other purposes” is not defined by the Act. He gave a similar example in section 54(2)(m) and then read Section 57.

Justice Chandrachud asked Chidambaram that if we cross the threshold of justiciability, which are the provisions are relatable to Art. 110? Chidambaram responded by saying that the question should be whether there is any provision in the Act which doesn’t fall under Ar. 110 (a) to (g), because money bill can’t have any provision beyond (a) to (g). He said that provisions such as Section 57, 54, 23 go beyond the scope of Article 110, and hence it is not a money bill but merely a financial bill. He said that it wasn’t a money bill when introduced or certified.

Justice Chandrachud asked Chidambaram whether the entirety of the bill has to go or the portions can be severed, that is, those provisions which fall under Art. 110 can be severed. Chidambaram replied that it will go in its entirety and that the provisions are not severable.

He then went on to read the relevant provisions of the Australian Constitution on money bill and said that Art. 55 says that laws will have provisions relating ‘only’ to money bill. Provisions relating to any other matter will have no effect. In the present case, the provisions make it clear that it was not a money bill, and therefore it could not have been passed as a money bill and the scrutiny of Rajya Sabha should not have been bypassed. He further submitted that if this could slip through as a money bill, virtually any bill could slip as a money bill. It sets a very dangerous precedent as a money bill is an extremely narrow subset of financial bill and that this bill goes far beyond the intended purpose of delivery of subsidies.

Chidambaram then concluded his arguments.

Senior Advocate K.V.Viswanathan thereafter commenced his arguments appearing on behalf of petitioners in W.P. 1056/2017 and 833/2013.

Viswanathan began by stating that he has 3 submissions- Collection, storage and use of data which invades privacy, Validity of Section 59, and exclusionary aspect of Section 7.

He then began reading Section 59. Justice Chandrachud observed that what section 59 does is that whatever has been done between 2009 to 2016 should be deemed to have been done in 2016 after the passage of this Act. Thus, it doesn’t give retrospective validity to the acts. Viswanathan asked if that could’ve been done and submitted that the Aadhaar Act was drafted on the assumption that privacy is not a fundamental right. He further submitted that even assuming section 59 is valid, it has to be declared unconstitutional for violating Art. 14 & 21.

Arvind Datar then made a submission on Aadhaar being mandatory for obtaining tatkal passport. he submitted that Aadhaar cannot be made mandatory in violation of the SC order. He also asked the Court to consider extension of deadlines for Aadhaar linking. The Attorney General submitted that there are other IDs eg. water bill, electricity bill which can be take for the purpose of Tatkal passport. Aadhaar is only for expediting the procedure. He submitted that in case of passport under tatkal scheme, Aadhaar is required for out of turn consideration to expedite the process.

The Attorney General says that they are strictly following the orders of the Supreme Court. The Court thereafter passed an order extending the deadline for Aadhaar linking until the Court completes the hearing and pronounces judgment in the case. Read more here.

The Court will continue its hearing on Wednesday, 14th March.

HT to SFLC.in(@SFLCin) and Prasanna S (@prasanna_s).

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