The Supreme Court on Wednesday, 20 January, dismissed the review petitions challenging its 2018 judgement upholding the constitutionality of the Aadhaar Scheme.
Four of the five judges on the bench passed the order rejecting the review petitions: Justices AM Khanwilkar, Ashok Bhushan, S Abdul Nazeer and BR Gavai. They argued that no grounds had been made out for a review of the original judgment.
In a reprise of what happened in September 2018, Justice DY Chandrachud dissented from the majority opinion.
He argued that the decision should have waited till a larger bench decided the questions regarding passing a law like the Aadhaar Act 2016 as a Money Bill, that had been referred by another five-judge bench in November 2019. In his original dissent, Justice Chandrachud had held that such a move was a “fraud on the Constitution”.
WHAT DID THE REVIEW PETITIONS ARGUE?
On 26 September 2018, a five-judge Constitution Bench of the apex court had upheld the constitutionality of the Aadhaar Act by a 4:1 majority. Certain sections of the Act were however held to be unconstitutional and struck down.
Chief among these was the provision which allowed for linking of private services (like mobile numbers and bank accounts) with Aadhaar for mandatory authentication.
This had been a particularly contentious point during the arguments, as the petitioners had contended that the inclusion of this provision meant that the Aadhaar Act was not legally passed, since it had been designated as a Money Bill.
Unlike regular Bills which require both Houses of Parliament to pass them before they become a law, Money Bills only require a majority in the Lok Sabha; the Rajya Sabha can recommend changes but these can be ignored by the lower house.
Money Bills are defined in Article 110 of the Constitution: they refer to laws which only deal with issues connected with taxation and the Consolidated Fund of India.
Since the Constitution uses the term “only”, the argument was that a law which dealt with other aspects – like the Aadhaar Act – could never have been designated as a Money Bill in the first place, meaning the whole Act had to be struck down as unconstitutional.
Justice Chandrachud had agreed with the argument in his dissent back in 2018, but the majority opinion rejected it, without giving any detailed reasoning.
Seven of the parties to the 2018 verdict filed review petitions asking the court to reverse its decision and strike down the Aadhaar Act, arguing that the judgment suffered from “errors apparent on the face of the record”.
These included a failure to engage with other aspects of the petitioners’ arguments on the right to privacy, as well as, prominently, the Money Bill issue.
The argument on the Money Bill question appeared to be buttressed by subsequent events. In its November 2019 Rojer Mathew judgment, while dealing with another law passed by the Centre after designating it as a Money Bill, a separate Constitution Bench of the Supreme Court cast doubt on the majority decision in Aadhaar, and referred the issue to a larger bench. That reference has not yet been decided.
WHY DID JUSTICE CHANDRACHUD DISSENT AGAIN?
The majority decision of the court on 20 January 2021 states that a “change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review”, which appears to be a reference to what the court had said in the Rojer Mathew decision.
However, Justice Chandrachud takes a different view in his dissenting opinion. Noting that the Money Bill issue was a vital part of all seven review petitions, he writes that:
“With the doubt expressed by another Constitution Bench on the correctness of the very decision which is the subject matter of these review petitions, it is a constitutional error to hold at this stage that no ground exists to review the judgment.”
The judge argues that the eventual decision of the larger bench which will consider this issue would have an “undeniable impact” on the validity of the 2018 judgment, and is hence crucial for the review petitions.
He also notes that earlier in 2020, a nine-judge bench of the Supreme Court had had to consider whether a reference to a larger bench could be made in a pending review petition – in the context of the review of the court’s decision in the Sabarimala case.
Chief Justice of India SA Bobde had in that case held that the court’s inherent powers were broad enough that a reference could be made even in a pending review petition if considered necessary for the “ends of justice”.
Justice Chandrachud says that if the Aadhaar review petitions are dismissed now, but the larger bench eventually finds that the 2018 majority got it wrong on the Money Bill issue,
“it would have serious consequences – not just for judicial discipline, but also for the ends of justice.”
As a result, he dissented and said that the “constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.”