Aadhaar

Final hearing of Aadhaar in Supreme Court – Day 38

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This post is essentially a compilation of tweets from Gautam Bhatia, Prasanna and SFLC to understand how the Aadhaar hearing happened in the Supreme court.

Day 38: 10 May ’18

Senior Advocate Gopal Subramaniam followed by Anand Grover, Arvind Datar, P.Chidambaram, K V Viswanathan and PV Surendran conclude their rejoinder for the Petitioners.

  • Gopal Subramanium Sr. Advocate is ready and waiting for the Bench to assemble.
    • On all notifications on Section 7. Each of the notifications are in furtherance of the dignity of the individual. If that is so, there is no question of imposing conditions when dignity is an inherent and inalienable right.
  • Justice Sikri asks about deduplication and therefore reaching the correct targeted beneficiary.
  • Gopal Subramaniam: If it is indeed such a affirmative action law, it needs to stand constitutional scrutiny. Stated purpose of the law is not necessarily the proper purpose of the law for constitutional test.
    • The law really does not achieve its stated purpose which is seamless delivery. The same delivery points remain under the 144 notifications.
    • The aim is laudable..may be there is no malafide. But no stated purpose of the law has been attained or attainable by the law.
    • The State has furnished no evidence to suggest that any of the 144 notifications have changed the landscape of seamless delivery of the said services. And all the evidence we have is of exclusion. Brings up how the Jharkhand cases happened when the women had ration cards!
    • Cites yesterday’s judgment on the progression of rights by the Supreme Court. Gives the example of how pension has been linked to Part 3.
    • Section 7 reinforces the asymmetry of power between the citizen and the state giving state giving unlimited power to limit citizen rights.
    • The law lacks proper purpose. A claim to a proper purpose is not proper purpose.
    • Refers to Delhi High Court local commissioner’s report on how POS machines were not working at most FPS shops.
    • Authentication is at the heart of the Act. Without authentication, there is nothing special about Aadhaar than other identities. But all evidence we have pointing to authentication simply not able to work reliably.
    • Reads Section 8. Digresses a bit and says how there is no real and effective oversight over REs.
  • Justice DY Chandrachud J agrees and says in a legislation such as this, we need a hierarchy of regulators.
  • Gopal Subramaniam: Subsidy benefit or Service in Secion 7 are words of condescension.
    • Can all affirmative action where rights under 14, 15, 16 and 17 and 21 and Fifth schedule can be subject to a condition now?
    • Justice Black said how this Govt is by of and for the people and not over the people.
  • Justice DY Chandrachud: Are subsidies largesse or a matter of right?
  • Gopal Subramaniam: This was settled in 1982 if not earlier that all of these are matters of right. Bonded labourer rehabilitation now is linked with Aadhaar…contrary to the judgment in Bandhua Mukti Morcha!
  • Justice Sikri wants to know the difference between Census and Aadhaar under the Constitution.
  • Gopal Subramaniam: Continues on Section 7. A recipient of a benefit should even be made aware that he is such a “beneficiary” to preserve his dignity under an ideal regime.
  • Justice DY Chandrachud points at how Section 7 is only an enabling provision. He asks what guides the discretion of central govt before notifications are issued.
  • Gopal Subramaniam: Section 7 has been interpreted virtually as a mandate and not discretionary by the government inasmuch as there are as many as 144 notifications covering many many fields.
    • There is no common denominator in Section 7 for any proportionality analysis. Only wants to impose conditions such that all his rights as grant or dole by the state. That is the end of dignity.
    • With the march of constitutionalism…the dissolution of certain identities are guaranteed. Section on 17,23 and 24.
    • The identity of the manual scavenger cannot be further entrenched. It has to be removed. Can you deny a person rehabilitation on any condition and have him return to that activity? That is simply unimaginable under our Constitution.
    • Section 7 does not satisfy “legitimate aim” because the true aim different from purported aim. And the means used are clearly not the least restrictive.
    • The question of balancing does not arise at all in this case. Balancing only arises in a case where there are competing right claims. Even the balance cannot emasculate any of the conflicted rights. No adequate justification offered by the government.
    • The last study on fakes and ghosts was in 2007…which in turn relied on data as of 1997!
    • The individual is an end unto himself; He has inalienable rights (no balancing for inalienable rights); no relinquishment of constitutional rights.
    • This Court overruling ADM Jabalpur was a conscious one. The doctrine of mere possibility of misuse does not apply here because there is actual denial of rights and infringement demonstrated.
    • As far as Part 3 rights are concerned, the doctrine of deference or judicial restraint does not arise.
    • After yesterday’s judgment, the value of the 2011 standing committee report becomes important. There are a number of problems in the Act…but most importantly does not achieve its purpose.
    • Reliefs claimed.
      • 1. Act to be struck down.
      • 2. All data destroyed and structures dismantled.
      • 3. In cases of deprivation amounting to death, compensation should be given to the families of the deceased.
  • Gopal Subramaniam concludes.
  • Anand Grover finishes his brief submission after handing over his written submissions. He points out how safeguards and contracts have not been rebutted and how 139AA is specifically challenged in his petition.
  • AP Datar will continue at 2.30 pm.
  • Bench rises for lunch. Will sit till 4.30 pm today.
  • Session 2.
  • Arvind Datar starts his rejoinder on bank and PAN linking. As a preliminary point on money Bill, he reiterates that the doctrine of pith and substance cannot apply to classification of bills.
    • He says that Aadhaar is at best a financial bill of Category II. Says that the doctrine of severability can’t apply to this case. If the Aadhaar Act is not a money bill, all of it must be struck down.
    • Says that when the Constitution says that the decision of the speaker on classification of bills is “final”, that finality is vis-a-vis the House. It does not preclude judicial review.
    • Cites an article in the NUJS law review which shows a table of cads where judicial review has been upheld despite the usage of the word “final”.
    • Now argued on bank linking.
    • Says that apart from the “magic wand” of black Money and terrorism, no evidence has been cited for what problem bank linking is meant to solve.
    • Says that most existing bank accounts have been thoroughly authenticated. He asks what purpose is permanent bank linking going to serve.
    • Says that once you’ve determined that I’m not a “fake”, what further purpose is permament linking going to serve?
    • Cites the Supreme Court judgment from 2011, Ram Jethmalani v Union of India, which acknowledges that there is a problem of unaccounted money, but emphasises that that does not justify erasing constitutional values.
    • Quotes Ghalib. “Dhool chehre pe thi, aur aina saaf karta raha“, to describe the invocation of black money and terrorism.
    • Concludes his rejoinder by saying that at least the choice to opt out should be given.
  • P.Chidambaram begins his rejoinder on Money Bill.
    • Attorney General’s reading of “only” is clearly erroneous.
    • Refreshes the Court’s memory on various provisions of the Act that do not fall under a to f clauses of 110 (1). Including 3,4, 54 (2)(m) and 57. 110 (1)(g) must be read narrowly.
    • State has not shown to which provision under a to f to which provisions such as 57 or 54 or 23 is incidental. Only then can such a provision be saved by clause g. If no such provision is shown among a to f, the Act falls.
    • State has failed to show how Raja Rampal, and Hollohan are not good law and how Mohd Shahid Sidiqqui and Yogeshwar Jaiswal are good law.
    • Implications of non money bill being passed as a money bill is immense. Violation of the basic structure… as it disables one half of the Parliament from exercising its wisdom in a bicameral legislature. Such exercise of power should not be condoned by this Court.
    • No provision in our Constitution to sever and save an invalidly enacted legislation. Unlike Australian constitution. The defect of non participation of RS and President under 111 is not cured by severability in the case. Not the function of this Court to save legislation that is fundamentally unconstitutional.
    • No case here that the Speaker has not certifiied multiple provisions as money bills or non money bills. The entire bill has been certified and if the certificate is invalid, no application of Severability.
    • Final point on Pith and Substance. No applicability in interpreting 110. Only entries of legislative lists.
  • P Chidambaram concludes by stating SC does not have to deal with consequence of Act being struck down. Parliament will find that answer. Suffices for SC to just declare this Act void.  Any other decision will make a mockery of Article in 110.
  • K.V.Viswanathan begins his rejoinder.
    • Says four fundamental errors vitiate the defence by Union.
    • 1. Least Restrictive means is a facet of proportionality. Contrary proposition by Dwivedi is totally incorrect.
    • 2. Theory of Balancing. No balancing among the bundle of rights of individual. It is a first principles of right that the majority’s rights will score over a minority’s! No fundamental rights will survive if we accept the balancing proposition put forward by the State.
    • In this case no evidence by state of fraud etc. We have shown how identity fraud is a really really a negligible % of frauds. Also points out how Dwivedi’s submissions refers to an overruled judgment in Mitlesh Kumari.
    • Resort to exception handling to save the Act is a complete misconception. Exception handling is ultra vires the Act and UIDAI has no control over such exception handling at all.
    • Reading from Salmond on first principles of right and duty.
    • He is rejoining on section 7 to show all vested rights cannot be conditioned on Aadhaar.
    • Correlative duty on state to provide for welfare …that burden cannot be shifted on citizens..to a “technological menace”.
    • All fundamental and statutory rights related services ought to be exempted from mandatory aadhaar…at a minimum.
  • Justice Sikri asks about targeted delivery and the efficiency therefore.
  • K.V.Viswanathan say’s that is only putting people against people. An argument of convenience. It is the state’s duty to have strong internal enforcement mechanisms. The whole burden cannot be shifted to the citizen!
    • His submissions here
  • K.V.Viswanathan concludes.
  • PV Surendran Sr. Advocate will be the final batsman.
    • He has to make only one submission on excessive delegation
    • 2003 12 SCC 738. 2001 6 SCC 301. Laying requirements for different delegation provisions cases.
  • He concludes.
  • Attorney General comments that this is the second longest hearing in the history of the Supreme Court after Keshavananda.
  • Bench rises.
  • Matter is reserved for judgment.

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