In a 4:1 judgement on Wednesday, the Supreme Court dismissed review petitions challenging its 2018 verdict upholding the constitutionality of the Aadhaar Act, the basis for the government’s Aadhaar scheme to give every Indian resident a biometrically linked identity number.
While Justices AM Khanwilkar, Ashok Bhushan, S Abdul Nazeer and BR Gavai dismissed the review petitions in a paragraph, Justice DY Chandrachud wrote a dissenting opinion that runs to 16 pages. He argued that the review petitions ought to be kept pending till a larger bench that is set to look into matters that have consequences for the Aadhaar judgement gives its decision.
Chandrachud said that dismissing the review petitions at this stage would have serious consequences not only for judicial discipline but also for ends of justice.
As the Supreme Court works on the principle of the majority, it is the opinion of the other four judges that will hold.
In 2018, a five-judge bench headed by Justice AK Sikri upheld the Aadhaar Act as being constitutional. However, to assuage the fears of the petitioners that Aadhaar could be used as a tool of surveillance, the court had read down some provisions of the law and completely struck down some others. At that point too, Chandrachud had dissented and declared that the law was unconstitutional.
To understand why the dismissal of the review petitions could cause a controversy, a little background is necessary.
Legal questions in Aadhaar case
There are two fundamental problems in the manner in which the Aadhaar Act was passed in March 2016. First, it was tabled by the Bharatiya Janata Party-led government as a money bill. Technically, these are bills that deal directly with taxation or expenditure from the Consolitated Fund of India.
Unlike for ordinary bills, the Rajya Sabha can only recommend changes to a money bill and send it back to the Lok Sabha. It is up to the Lok Sabha to accept or reject the recommendations.
The Opposition felt that the Aadhaar Act was not a money bill but was being tabled as one because the Bharatiya Janata Party government lacked a majority in the Upper House at that point.
The passage of the Act as a money bill was challenged before the Supreme Court.
This raised another question. Given that the Speaker has the final say in certifying whether a piece of proposed legislation is a money bill, there were doubts over whether the Supreme Court could sit on judgement over the Lok Sabha Speaker’s decision.
In 2018, the Supreme Court said that the Speaker’s decision could indeed be judicially reviewed in certain extraordinary circumstances where there was serious illegality. However, the majority of judges held that the Aadhaar Act had the elements of a money bill and upheld it.
In his dissent, Justice Chandrachud declared that Aadhaar Act did not satify the standards for a money bill. He also said that the Act was unconstitutional on various counts.
Doubting the judgement
In November 2019, questions about the Aadhaar Act were resurrected. This time, a five-judge bench hearing challenges to the Finance Act, 2017, raised doubts about whether the majority judgement in the Aadhaar case was correct. The Finance Act, 2017, passed as a money bill, had made changes to tribunals and this was challenged.
In the judgement that referred a key point to a larger seven-judge bench, a five-judge Constitution bench headed by former Chief Justice Ranjan Gogoi wanted the larger group of judges to clarify what the Constitution meant in Article 110 (1) when it used the term “only”.
In consequence, this meant that there was a possibility that the decision in the Aadhaar case could be reversed if the seven-judge bench, which is yet to be constituted, declared the Justice Sikri bench order as erroneous.
It is this possibility that Justice Chandrachud has cited in his dissenting opinion on Wednesday.
Regretting his inability to concur with the majority of four judges, he said:
“Dismissing the present batch of review petitions at this stage – a course of action adopted by the majority– would place a seal of finality on the issues in the present case, without the Court having the benefit of the larger bench’s consideration of the very issues which arise before us.
If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar-5J.), it would have serious consequences –not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew[seve-judge reference].
In other words, Justice Chandrachud has noted that without the seven-judge bench ruling on what the word “only” in Article 110 (1) denotes, the questions in the Aadhaar review petitions cannot be satisfactorily answered.
But the majority said:
“In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed.”
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