The September, 2018 verdict by Supreme Court upholding the Aadhaar project, is now up for review before a 5 Judge Constitution Bench. On January 11, a five-judge Bench comprising Justices AM Khanwilkar, DY Chandrachud, Ashok Bhushan, S Abdul Nazeer and BR Gavai will be considering a batch of review pleas against the 2018 judgment in chambers at 1:30 PM.
Interestingly, Justices Khanwilkar, Chandrachud and Ashok Bhushan were part of the original Bench that decided the case on September 26, 2018. Justice Chandrachud had delivered a dissenting opinion.
Recap of the 2018 judgment
In Justice KS Puttaswamy vs Union of India (2017 10 SCC 1), authored by Justice Sikri, the 5 Judge Bench had held that while Aadhaar would remain mandatory for filing of Income Tax Return and allotment of permanent account number (PAN), it would not be mandatory to link Aadhaar number to bank accounts and telecom service providers could not seek its linking for mobile connections.
In a 4-1 split decision, the top court quashed some provisions of the Aadhaar Act, 2016 but held that Aadhaar would be needed for availing facilities of welfare schemes and government subsidies. The mandatory use of Aadhaar based KYC for mobile connections and bank accounts was however, prohibited.
Section 57 (Targeted Delivery of Financial and other Subsidies, Benefits and Services) of the Aadhaar Act that allowed private parties like telecom companies or other corporates to avail of the biometric Aadhaar data was struck down as unconstitutional.
Justice Chandrachud, in his dissent, ruled that the Aadhaar Act should not have been passed as a Money Bill as it amounts to fraud on the Constitution and is liable to be struck down. He observed that it was worrying to see a foreign company that has the source code of the Aadhaar project since there were valid concerns about the infringement of a citizens’ privacy. But the Majority opinion upheld the passage of the Aadhaar Bill as a Money Bill in the Lok Sabha.
Why is the 2018 judgment being reconsidered?
In November 2019, a five-judge Constitution Bench of the Supreme Court had doubted the correctness of the Aadhaar judgment primarily in relation to the question of passage of Aadhaar Act as a Money Bill.
In Rojer Mathew v South Indian Bank (Civ. Appeal 8588 of 2019), the Supreme Court noted that “the majority dictum in Aadhaar judgment did not substantially discuss the effect of the word “only” in Article 110(1) and did not examine the repercussions of a finding when some of the provisions of an enactment passed as a Money Bill do not conform to Article 110(1)(a) to (g)”.
Justice Chandrachud had pointed out a similar aspect in the Puttaswamy judgment in 2018. The provision said “a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters,” following which it lists out connections to taxation and expenditure from the Consolidated Fund of India.
Justice Chandrachud was not convinced by the government’s argument that since the laws passed as Money Bills involved paying salaries from the Consolidated Fund, they should qualify. He opined that this would lead to any law being passed as a Money Bill which would essentially be unconstitutional.
Observing a similar argument, the Bench in Rojer Mathew referred the issue to a larger Bench.