(A stand-alone essay in our ongoing series on the Aadhaar judgment, this is a guest post by Prasanna S.).

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Justice DY Chandrachud’s celebrated judgment in the Aadhaar case has been described as, broadly speaking, a ‘dissent’. Just before he pronounced the judgment, he had himself announced in open court that it was a partial dissent. However, there is nothing in the judgment to indicate he had read the other two judgments or if any of the other two had read his judgment. There is neither an expression of dissent nor concurrence in the judgments. The extent of disagreement between the ‘Majority’ opinion led by Justice Sikri and the ‘Minority’ opinion of Justice Chandrachud’s is to be analysed and understood. The opinion of Justice Bhushan who broadly concurred with Justice Sikri (barring on the issue of Bank Account-Aadhaar linking) is, for simplicity, not discussed here.

A selection of key issues and the indication of broad agreement/disagreements in the judgments is as follows.

Concurrent findings of the Majority and the Minority:

The decision of the Speaker on the certification of a Bill as a Money Bill is not immune from judicial review. (I understand that the Majority has equivocated on whether this needs to be decided at all in this case. Be that as it may.) Use of Aadhaar by private parties is unconstitutional (Section 57). The PMLA Rule that provided for mandatory Aadhaar-Bank Account linking is unconstitutional. The DoT circular that mandated Mobile-Aadhaar linking is unconstitutional.

Divergence between the Majority and the Minority:

The Minority held that the entire Aadhaar Act and the Aadhaar project are unconstitutional. The Majority upheld the Act. Section 59 of the Act that purported to save the Aadhaar scheme prior to the passage of the Aadhaar Act was struck down as unconstitutional by the Minority. It was upheld by the Majority. Section 57 as a whole was struck down by the Minority. On the other hand, Section 57 was read down only partially by the Majority.

The focus of this article is the issue of the decision on the Mobile-Aadhaar linking under the 23.03.2016 DoT circular. As seen above, both the Majority and the Minority quashed the circular as unconstitutional. The Minority however went on to direct that the Union of India and TRAI should immediately direct the telecom operators to delete Aadhaar and biometric data of subscribers within two weeks (Para 285, internal page 394 of the Minority judgment). This article argues that such a direction, although present only in the Minority opinion, is binding law and the Union of India and TRAI are required to comply with it, unlike what some seem to think. The author did a brief twitter thread on the issue. This article attempts to somewhat exposit it.

Reading separate opinions

When there are separate opinions delivered by the Supreme Court, the exercise extracting the ratio or the ‘law declared’ by the Court is not always straightforward. Sometimes, there is a summary of the judgment signed as the ‘View of the Court’ (or ‘View by the Majority’), which may be of help – as was the case in Puttaswamy(I) (the privacy judgment). Such a summary arrived at by the bench interpreting their own judgments without hearing all the parties as to the reading of each of the judgments has at times created controversy (such as in Kesavananda Bharati).

It is a common practice to analyse the opinions on an issue-by-issue basis and find the bench strength that has supported a particular view in regard to each issue, as this blog did for Puttaswamy(I) on the question of limitations of the fundamental right to privacy. (Incidentally, the author of that post Gautam Bhatia has concluded that the law of the land as to the test of constitutionality for a law impacting the right to privacy is to be found in Justice Kaul’s opinion, which was a separate concurring opinion which was written only for himself, and clearly in the ‘minority.’) This approach of trying to extract or mine ratio from minority opinions (which may be, broadly speaking, ‘concurring’, ‘dissenting’, or partly ‘concurring’) is not plucked out of thin air. It has not only been part of the common law legal tradition (on the principle that there is a presumption that each of the judgments has been read by everyone on the bench and a lack of dissent on any of the points in the judgment should be taken as a concurrence on that point), but also anchored in the text of India’s constitution.

Distinction between a ‘judgment’ and ‘law declared’ – Can a ‘dissenting judgment’ be a source of law?

The law on this mining exercise is governed by Articles 141 and 145(5) of the Constitution.

Article 141 of the Constitution says,

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 145(5) of the Constitution says,

No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.

One of the earliest cases that decided the question of whether the judgment in Article 145(5) means the same as ‘law declared’ under Article 141 was Mahendra Thakar v. S.P. Pande AIR 1964 Bombay 170. Therein, a division bench of the Bombay High Court held that:

“There does not appear to be any warrant for reading the provision of Article 145(5) into the provisions of Article 141, and we do not think that the “law declared” can be approximated to the judgment delivered by the Supreme Court. On the other hand, having regard to the provisions of Article 145(5) that a Judge who does not concur may also deliver a judgment, it is clear that the law declared may as well be in a dissenting judgment as in a majority judgment. The argument, therefore, that the three Judges whose decision resulted in the allowing of the appeal in Purshottam’s case did not form a majority of those holding that Article 14 applied to the second proviso to Section 34(3) does not make that the law declared.”

Prem Prakash Gupta v. Union Of India AIR 1977 All 482 held that:

The majority opinion did not express any opinion on this issue but the minority opinion, as expressed by Mahajan J., did examine this issue and answered it in the negative. In my view, in a situation where the majority of the Judges of the Supreme Court expressly chose not to examine a particular issue and decided the suit on certain other grounds, then the expression by the minority on such an issue can be said to have a binding force on the courts in India. In this view of the matter, I think the observations made by Mahajan J., are binding on me.

A similar approach has been followed in or has been laid down in a number of other High Court decisions, including the 2009 decision in Narinder Batra v. Union of India, where the current Union minister for finance, Arun Jaitley argued and won on that proposition.

It must be said that the aforementioned high court judgments have neither been overturned nor reaffirmed by the Supreme Court. There have been atleast two instances where the question has been argued. However, in both those instances, the supreme court did not venture an opinion on that as it was found that the majority judgments cited in the cases had in fact disagreed with the reasoning given by the minority opinion sought to be relied upon by the counsel.

Do directions contained in an opinion not expressly endorsed by the majority have the binding force of ‘law’?

However, in Ashok Kumar Gupta v. State of Uttar Pradesh (1997) 5 SCC 201, the Supreme Court dealt with the question of whether a direction by a plurality of judges led by Justice Jeevan Reddy in the Mandal Case (Indra Sawhney v Union of India) is binding given that the plurality was one-judge short of the majority of the judges in the bench. The Court relied on Sawant J’s separate opinion, concurring on that relevant conclusion and held that the direction by Justice Jeevan Reddy had binding force.

Both these propositions on binding law and binding directions also appeal to common sense. If there is a judicial opinion by a judge or set of judges sitting in the highest constitutional court of the land, it should normally be binding unless strong and compelling reasons exist to suggest otherwise – namely either a clear expression of disagreement with that opinion by a majority of judges of that bench, or a later supreme court decision of a larger bench having overruled it or disagreed with that opinion.

Conclusion

In the instant case, on the telecom circular issue, both the Majority and the Minority judgments in the Aadhaar case had agreed on both the conclusion and the reasons for its unconstitutionality. The Majority expressed no opinion on the deletion of the data, but the Minority directed such deletion. It must be presumed that the Majority impliedly concurred with that direction. The directions contained in the Minority opinion of Justice Chandrachud’s to the Union of India and TRAI relating to the deletion of telecom subscriber Aadhaar data is binding and has the force of law.

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(Credit: The author is thankful for the inputs provided by Goutham Shivshankar.)

(Disclosure: The author assisted the petitioners in the Aadhaar case before the Supreme Court)