Aadhaar as a money Bill could lead to public harm

To allow the majority’s judgment to stand, therefore, would only prove hugely damaging to India’s democracy

Adissenting opinion, said Charles Evans Hughes, before becoming chief justice of the US Supreme Court in 1930, should be “an appeal to the brooding spirit of the law,” and “to the intelligence of a future day.” Perhaps that spirit will come alive in India one day, and, perhaps then the Supreme Court will recognise the value in Justice DY Chandrachud’s majestic dissent in the Aadhaar case. But until then we’re left with a verdict that delivers a punishing blow to the edifice on which the Constitution stands.

Despite its length, and despite nullifying certain troubling aspects of the programme, the majority’s judgment offers little in the way of consistent and cogent rationale for upholding the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 [Aadhaar Act], and for giving the court’s imprimatur to substantial parts of a scheme that is fundamentally opposed to democratic tenets.

When the Aadhaar programme was originally envisaged, it was seen as an effort at providing to every Indian a unique identity number. This supposed identity, the government argued, would allow for a fairer distribution of welfare benefits. But even at its conception the programme lacked legal foundation.

When the government began to implement the scheme in 2009, it did so through an executive notification unbacked by legislation. And, ultimately, when, in March 2016, a bill was introduced in the Lok Sabha, to validate and give effect to the programme, the proposed law was categorised as a money bill. The Speaker of the Lok Sabha certified that the bill required no assent from the Rajya Sabha to turn into law.

The government argued that the Aadhaar Act’s introduction as a money bill conformed to Article 110 of the Constitution. This provision allows the Speaker to classify a proposed legislation as a money bill, when the draft law deals only with all or any of the matters enlisted therein.

These include items such as the imposition or remission of any tax, the regulation of the borrowing of money by the government of India, the custody of the Consolidated Fund of India, the appropriation of money out of the consolidated fund, and, critically, any matter incidental to these subjects specified within Article 110.

Now, while there was broad agreement across the bench on the amenability of the Speaker’s decision to judicial review, only Justice Chandrachud found the categorisation of the Aadhaar Act unconstitutional. Superseding the authority of the Rajya Sabha, he wrote, amounted to “a fraud on the Constitution”.

As his opinion rigorously highlights, for a bill to be classed as a money bill, it must contain “only provisions” that deal with every or any one of the matters contained in Article 110(1). Any draft law, therefore, that contains an item beyond the scope of the subjects enlisted in clauses (a) to (g) of Article 110(1) cannot be introduced as a money bill.

In Justice Chandrachud’s holding, even Section 7 of the Aadhaar Act, which allows the government to make the receipt of any subsidy or benefit for which the expenditure is incurred from the consolidated fund conditional on Aadhaar, only imposes a requirement of authentication. It does not declare any expenditure to be a charge on the consolidated fund, as Article 110 requires. In any event, the other provisions of the Aadhaar Act, he found, traverse far beyond purposes incidental to Section 7. For instance, they deal not only with the generation of Aadhaar numbers, but also the collection of demographic and biometric information, the creation of offences and penalties, and, most harmfully, the use of Aadhaar for “any purpose”.

Yet, the majority’s opinion, while singing paeans to the Rajya Sabha’s place in India’s democracy, validates the programme by ruling that every other provision in the law is only incidental to Section 7. This finding is not only incorrect but is also potentially productive of the greatest public mischief. Tomorrow, using the consolidated fund as a fig leaf, virtually any legislation can be introduced as a money bill. All that the draft law needs are one or two provisions that contain “elements” of a money bill.

To allow the majority’s judgment to stand, therefore, would only prove hugely damaging to India’s democracy.

USING THE CONSOLIDATED FUND AS A FIG LEAF, VIRTUALLY ANY LEGISLATION CAN BE INTRODUCED AS A MONEY BILL. ALL THAT THE DRAFT LAW NEEDS ARE PROVISIONS THAT CONTAIN “ELEMENTS” OF A MONEY BILL