Aadhaar hearing: A law cannot be declared unconstitutional because of fear of misuse, says SC

Justice DY Chandrachud said it was necessary to establish that the legislation is a colourable one in order to strike it down.

The Supreme Court on Tuesday said a law cannot be declared unconstitutional just because there was a possibility of it being misused, NDTV reported. A five-judge Constitution bench, headed by Chief Justice Dipak Misra, was hearing a clutch of petitions that challenge the constitutional validity of the government’s biometric identification programme.

Justice DY Chandrachud said there were many judgments of the Supreme Court that concluded that a mere possibility of misuse could not lead to striking down of a legislation. Advocate Kapil Sibal, appearing for one of the petitioners, replied that Aadhaar law is an exception to these judgments as it was already being misused, NDTV reported.

“Striking down a legislation is a problem for us,” Justice Chandrachud said. He added that for the court to strike down a law, it must be established that the legislation is a colourable one. A colourable legislation is when the legislature indirectly enacts a law it is not allowed to do within the constraints of the Constitution.

Sibal said the problem with the Aadhaar law is the “unbridled nature of power”. The lawyer argued that the Supreme Court’s decision to allow Aadhaar would have “far-reaching effects” and “affect future generations”.

“Aadhaar is nothing but right to information for the state,” Sibal argued. “Information is power and if the power is given to state, it will use it like never before.” Sibal also said that Aadhaar could not identify whether a person is a terrorist or a money launderer, and thus its utility to national security was exaggerated.

However, the judge said the constitutionality of a law has to be based on the generality of the cases, and not exceptional cases. “How does the court decide what level of risk is proper?” Chandrachud asked. “Should the court get into this or should it be left to the legislature?”

The bench will continue hearing the matter on Wednesday.

During the last hearing on February 1, Chandrachud had lost his cool when counsel Shyam Divan, who is representing the petitioners, had questioned the credibility of a World Bank report that the government had cited in its affidavit.

“Since the beginning, I am hearing this that if I am not with you, then I am an Aadhaar judge,” Chandrachud had said. “I do not care...I am not answerable to anybody. I am committed to the Constitution.”

In a landmark ruling in August 2017, the Supreme Court had declared privacy a fundamental right protected under Article 21 of the Constitution. The bench was initially set up on December 13, but two days later, the Supreme Court agreed to the Centre’s submissions to extend the deadline to link Aadhaar with all government schemes and services to March 31. The interim order also extended the deadline to link Aadhaar with mobile numbers to the end of the financial year.

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