The Supreme Court’s verdict on upholding the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, is a victory for Bharat as the welfare state and, undoubtedly, an unprecedented move to counter and check pilferage and leakages in the public distribution schemes on account of identity fraud.

Aadhaar was conceived as a voluntary mechanism for direct delivery of the benefits and subsidies by the government. However, over the years, a simple voluntary mechanism was converted into a mechanism of systematic surveillance and social profiling, with a view to gain political advantage by misusing the information so collected. The historic verdict by the Supreme Court has restored the fine balance to a great extent by balancing the rights of the individual against the interests of the state.

The Supreme Court has rightly struck down the provisions of the Aadhaar Act that could be misused and were most vulnerable to surveillance, especially in relation to collection of information and authentication by private entities (Sec 57); giving a right of hearing and complaint in case of disclosure or misuse of information of an individual (Sec 33/Sec 47) is also a step in the right direction.

But the question that needs to be pondered the most is the deliberate subversion of the Constitution and constitutional institutions in the manner in which the Aadhaar Act obtained legislative approval. The action of terming Aadhaar Act as a Money Bill by the Speaker of the Lok Sabha, as ostensibly the ruling party at that time did not have brute majority in the Rajya Sabha, was only to bulldoze its own version of the Aadhaar Act. The classification of the Bill as Money Bill, which may have seemed innocuous at the time, was a Parliamentary stratagem to convert a simple welfare scheme into a tool for enslavement and state surveillance.

The classification of the Aadhaar Bill as a Money Bill by the Speaker ensured virtual elimination of the Rajya Sabha and the President of India from the legislative process. Neither the Rajya Sabha had the power to amend the Bill, nor did the President have the power to return the Bill for reconsideration. Having said that, the role and significance of the Rajya Sabha cannot be downplayed, being integral to bicameral legislature signifying constitutional federalism.

Article 110 of the Constitution, which defines ‘Money Bill’, needs to be given a strict interpretation since it lays down an important exception to the legislative process. A Bill that only contains any of the enumerated matters in Article 110 and nothing besides it is undisputedly a ‘Money Bill’. However, if it contains any other matters, then unless these are ‘subordinate matters incidental to’ any of the enumerated matters so contained in the Bill, the Bill is not a ‘Money Bill’.

The verdict of the Supreme Court, though, unanimously recognises that the power of the Speaker in relation to classification of a Bill as a Money Bill is not unbridled and can be amenable to judicial review. But the majority decision, somehow, does not address this question with clarity, which one would have expected after the culmination of the second-longest hearing in the history of the apex court. The majority view while upholding the constitutional validity of the Aadhaar Act states that “we are of the opinion that Bill was rightly introduced as Money Bill. Accordingly, it is not necessary for us to deal with other contentions of the petitioners, namely, whether certification by the Speaker about the Bill being Money Bill is subject to judicial review or not, whether a provision which does not relate to Money Bill is severable or not. We reiterate that main provision is a part of Money Bill and other are only incidental and, therefore, covered by clause (g) of Article 110 of the Constitution”.

The majority view heavily relies on Section 7 of the Aadhaar Act, which makes receipt of subsidy, benefit or service for which expenditure is incurred from the Consolidated Fund of India dependent on establishing identity by process of authentication through Aadhaar. However, curiously, Section 7 does not declare any of the subsidy, benefit or service as a charge on the Consolidated Fund of India, but merely enacts a provision allowing for Aadhaar to be made mandatory in order to receive such subsidy, benefit or service.

Assuming, even if Section 7 were to be covered within the definition contemplated under Article 110 of the Constitution, there are other substantial provisions like Section 57 that would not fall within the ambit of the definition of Money Bill. Even though a part of Section 57 has been held to be unconstitutional and struck down by the majority, what needs to be seen is the form and language of the Aadhaar Bill on the date on which it was classified as a Money Bill, when clearly it did not qualify as a Money Bill.

The legal framework of the Aadhaar Act has the effect of creating substantive obligations that include enrolment on the basis of biometric and demographic information, creation of a statutory authority to implement and supervise the process, protection and use of information collected during enrolment and creation of offences and penalties in case of unauthorised disclosure or loss of such information. Such an elaborate framework cannot be brushed aside and termed as ‘incidental’ to Section 7, with a view to justify and substantiate the classification as a Money Bill.

Justice DY Chandrachud’s dissenting judgment accepts and recognises the risks of such subversion of constitutional institutions. Justice Chandrachud, in a sharp critique, has observed that “Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution.” He arrived at the conclusion that since none of the requirements for classifying the Aadhaar Bill as Money Bill are satisfied, the Aadhaar Act has to be struck down as unconstitutional. Unfortunately, his is the minority view.

In a democracy, being unique may be better than being the best, but the ends do not always justify the means as they not only set a dangerous precedent, but also weaken the foundation of democratic institutions.

Sameer Chaudhury

The author is a barrister and practising advocate in the Supreme Court