In Conversation with Mr. Fuzail Ayyubi – NRC, Refugee Convention and Freedom of ExpressionOctober 23, 2018
NATIONAL REGISTER FOR CITIZENS IN ASSAM: THE WAY FORWARDOctober 23, 2018
The Aadhaar Act from its very inception in 2009 to the subsequent passage of the draft as a money bill in 2016 has been a talking point in the public policy, civil society and legal circles. Assigning a unique 12-digit identification to every citizen might seem like an easy task, but is clearly far from it when it entails indexing a population of around 1.3 billion people. Therefore, it becomes imperative to look into the structure and scheme of the Act and not focus on just the provisions of the Act as they stand written on paper but also its immediate and direct effect on those who come under its ambit and seek to be governed by it to the extent of provision of welfare benefits and services.
The landmark judgement delivered by a five-judge bench led by the CJI on September 26th upheld the validity of Aadhaar by 4:1 with a dissent as thorough as the judgement (actually even more!) by Justice D.Y. Chandrachud. The judgement sets the tone for future debate on the constant creation of new frontiers by technology and its effect on the freedom of individuals within a liberal-democratic nation that India strives to be. Upon a brief reading of the judgement, one realizes that it puts forth more questions than what it answers and while it does attempt to clarify and define the contours of the Act to a certain extent; it still leaves a lot for further speculation.
It is not possible to analyze all aspects of the judgement in one brief article. The present article seeks to understand the passage of the Act as a money bill and whether this was constitutionally sound or not. To understand this one must know what a money bill is and what our constitution says on money bills. A money bill unlike an ordinary bill can only be introduced in the Lower House of the Parliament (Lok Sabha) and when the Lower House sends it to the Upper House (Rajya Sabha), the Upper House can recommend amendments and send it back to the lower house within 14 days. The Lower House can either accept all or part of the recommendations made by the Rajya Sabha or reject them in their entirety and pass the bill in its original form. The definition of a money bill is exhaustively laid down in Article 110(1) of the constitution and Article 110(3) states if any question arises whether a bill is a money bill or not, the decision of the Speaker of the House of the People shall be final. It is therefore, important to ascertain whether a decision in this regard made by a Speaker can fall under the purview of judicial review or not. The Attorney General of India in his submissions had stated that Constitution attaches finality to the decision of the Speaker and hence whether the Aadhaar Act fulfils the requirements of being categorized as a Money Bill is not open to judicial review. He further submitted that the Aadhaar Act does fall under Article 110 of the Constitution.
In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, a constitution bench of the Supreme Court made a distinction between a procedural irregularity and an illegality. What can come within the ambit of judicial review has been discussed in Special Reference No. 1 of 1964 (a seven-judge bench judgement), Raja Ram Pal and Ramdas Athawale v. Union of India which have consistently held that the validity of proceedings in the Parliament or a State Legislature can be subject to judicial review on the ground that there is an illegality or a constitutional violation.
The judgement and particularly the dissent of Justice Chandrachud beautifully captures how Article 110 came to be as it stands today by tracing its origin to the Parliament Act of 1911 and how the draftsmen of the Indian constitution deliberately chose to deviate from the language used in the Act of 1911 with respect to the decision made by the Speaker of the House of the People in deciding whether a bill is a money bill or not. As stated in Paragraph 68 of the judgement, the framers of the Indian Constitution did not want to confer the same status on the power assigned to the Speaker of the Lok Sabha, as is provided to the Speaker of the House of Commons. This is reflected by adopting the phrase “shall be final” in Article 110(3) instead of “shall be conclusive for all purposes, and shall not be questioned in any court of law” which clarifies the intention of our Constitution makers that finality would operate as between the Houses of the Parliament and it did not exclude judicial review by a Constitutional Court. Judicial review provides the much-needed check on the exercise of powers by the Speaker to prevent any arbitrary action and promotes transparency, non-arbitrariness and fairness which should be the cornerstone of the functioning of any institution in the country.
After understanding what a money bill is, one should then proceed to see if the Aadhaar Act qualifies to be passed as a money bill or not. According to Section 110(1) of the Constitution, a bill shall be deemed to be a money bill if it contains only provisions dealing with the matters specified across Article 110 (1) (a) to (g). A certification can be questioned on the ground that the Bill did not fulfil the conditions stipulated in Article 110(1) to be a Money Bill. Once that is proved and the certification seems to be contrary to the constitutional mandate then it can be challenged on this ground and can be judicially scrutinized.
The majority opinion seems to rely mainly on the contention put forward as argued by the respondents that Section 7 of the Aadhaar Act forms the heart and soul of the Act and the expenditure to be incurred on the subsidies, benefits and services were to be made out of the Consolidated Fund of India thereby meeting the requirements laid down in Article 110(1). All other provisions of the Act are only incidental to Section 7, and, therefore, fall within the meaning of Article 110(1)(g) which deals with incidental matters. However, as correctly pointed out in the minority dissent opinion, this approach is highly misguided and a money bill must only contain the provisions that either deal with all or one of the matters laid down in Article 110(1) since the definition laid down in Article 110 is exhaustive.
The majority opinion unfortunately seems to have not laid down clearly the touchstones on which the Aadhaar Act was held to be constitutionally valid. The provisions of the Act are not meticulously examined and almost any bill can be passed as a money bill if the logic by which Aadhaar Act was passed as a money bill is followed. Prima facie, the Constitution Bench by a 4:1 majority upholding the passage of the Aadhaar Act seems erroneous and the passage of it as a money bill has not got the attention it deserved and this issue has been dealt in passing and has been relegated to the background instead of being one of the focal points of analysis. The judgement has lacunae which not only need to be filled but also re-examined in order to avoid confusion in the future (and a possible overruling?) and needs to provide guidelines to strengthen the mechanisms which could prevent the dignity and privacy of our digitized citizenry from being compromised.
ABOUT THE AUTHOR:
Alina Masoodi completed her bachelors in Economics from the University of Delhi and is a final year LL.B. student at Campus Law Centre. She has been actively involved with social entrepreneurship projects revolving around LGBTQ rights in the past and is currently one of the senior associate editors at IJLPP.