On Aadhaar: Part V (Article 110, Constitutionality of Section 59 and Excessive Delegation)

By: Digvijay Chaudhary

In the previous part, we discussed, how the Aadhaar act doesn’t bear the character of a money bill based on previous judgments of the Supreme Court and that the judicial review of the speaker’s decision has also not been barred. Here, we’ll try to figure out how the constitution makers did not intend to bar the judicial review of the speaker’s decision through article 110.

This paper traces the history and origin of money bill in the Constitution of India, right from when it was first introduced in the Parliament Act of 1911 and how judicial review of the speaker’s decision has not been barred by the Constitution.

The concept of money bill was introduced when the House of Lords rejected the annual Finance Bill as passed by the Commons in 1909. The Lords kept rejecting the Finance Bill and a government whose Finance Bill is rejected can only resign or dissolve the Parliament because without money it is impossible to govern. The crisis eventually led to the passage of the Parliament Act of 1911, which essentially deprived the House of Lords of the right to reject money bills.

This statutory concept of a money bill ultimately found its place in the Indian Constitution but with crucial omissions and modifications. Article 110(3) in the Indian constitution was inspired by Article 22 of the Irish Constitution and Section 3 of the Parliament Act of 1911. Article 110(3) of Indian Constitution provides that if any question arises whether a bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.

Article 22 of the Irish Constitution states:

The Chairman of Dail Eireann shall certify any Bill which, in his opinion, is a Money Bill to be a Money Bill, and his certificate shall, subject to the subsequent provisions of this section, be final and conclusive.

From the above section, it follows that the certificate of the speaker shall be final when no dispute is caused by the upper house, however, if a dispute is caused then finality is subject to the subsequent provisions of the section. This section is followed by the elaborate dispute mechanism if the upper house disputes on the question of the bill being a money bill. The dispute mechanism that the constitution of Ireland has when the Upper House disputes regarding the decision of the chairman were not adopted in the draft constitution. This raises a question that why take half the procedure of one constitution and adopt in your constitution and leave the other half? There’s also no substitute for that other half in the constitution. Here, a loophole is created, a gap which needs reasoning. The Indian constitution, on the other hand, doesn’t provide for any dispute resolution mechanism and in absence of any dispute mechanism, excluding judicial review of such a decision would amount to an arbitrary and unreasonable understanding of the Indian Constitution. Let’s look at another provision from which Article 110(3) is inspired. Section 3 of the Parliament Act, 1911 states:

Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law.

On comparing it with Indian Constitution, the result is, that the words, conclusive for all purposes and shall not be questioned in any court of law have been omitted by the Indian Constitution. This section expressly excluded the judicial review jurisdiction of courts by clearly stating that the speaker’s certificate ‘shall not be questioned in any court of law’ and that it shall be conclusive ‘for all purpose’. The framers of the Indian Constitution did take it into consideration and incorporated the conclusive nature of the speaker’s decision into Article 110(3) by using the words ‘shall be final’, but the language used in Art. 110(3) of the Constitution of India is substantially different from section 3 of Parliament Act, 1911. Had the framers wanted to exclude judicial review of the speaker’s decision, they would have used the same phrases.

The above discussion shows that the judicial review of the speaker’s decision had not been excluded by the framers of the Constitution. Excluding judicial review of the speaker’s decision would be incompatible with the overall scheme of the Constitution of India, such a provision would have been out of sync with the fundamental philosophy of the Constitution of India which is based on the tenet of separation of powers and importing absolute immunity from judicial review would render the constitutional procedure for lawmaking redundant in the Indian context.

This also flows from the powers of the Supreme Court granted under Article 142 of the Constitution; which allows the Supreme Court to make such order as is necessary for doing complete justice in any cause or matter pending before it. Article 142 now becomes the basis of the judgment making power of the Supreme Court and hence if the court senses any ulterior motives or some injustice happening by Aadhaar being introduced as a money bill then it will surely take charge of the matter.

We are in a state to look at Section 59 of the act which provides that all actions taken prior to the coming into the force of the Act shall be deemed to have been validly taken under the Act. Now, the act was passed in 2016, but the enrolments for an Aadhaar card were already under procession. Throughout the country, enrolments had started and been taking place without the authorisation of an act. To tackle this, the Aadhaar act included this provision. This provision is thus, being contested as falling foul of the constitution.

However, there’s a catch here; right to privacy was declared as a fundamental right in the year 2017. Before that, the act operated with the notion that right to privacy is not a fundamental right as has been argued by the government. Hence, Section 59 cannot validate the enrolments before the act came into force. Therefore, Section 59 violates article 14, 19 and 21. However, the trouble with striking down pre-2016 enrolments is that the Supreme Court blessed such enrolments when they were being undertaken. In an interim order in September 2013, the court refrained from stopping enrolments, instead of holding that no person should suffer for not having an Aadhaar card. It reaffirmed this stand in March 2015 and passed an interim order in August 2015 confining Aadhaar to the PDS and LPG schemes. This was judicially expanded in October 2015 to cover various other schemes, but with the clarification that the scheme was voluntary. Moreover, the court subsequently upheld the mandatory linking of Aadhaar with PAN numbers. It now supported Aadhaar’s usefulness in tackling tax evasion. It will thus be hard for the court, after it allowed the state to frenetically expand enrolments and increase linking, to now strike down pre-2016 enrolments.

The Aadhaar act also suffers from the excessive delegation. Sections 7, 8, 23, 28, 32, 50 and 54 of the Aadhaar Act have left the fundamental policies for the executive to decide. Now, excessive delegation as a principle has not been boundarily defined by the Supreme court but there has been some guidance on the issue by the court. In the case of In Re Delhi Laws Act, the Supreme Court laid down that the legislation cannot delegate essential legislative functions and policy. This will lead to the delegatee having more powers than the delegator, which isn’t permissible. This amounts to excessive delegation and is hence, unconstitutional. The problem with the Aadhaar act is that it doesn’t define and properly lay down its policy. If we were to construct ‘the targeted delivery of subsidies, benefits and services’ as the policy and essential function of the act, then Sections 7, 8, 23, 28, 32, 50, 54 and 57, all would fall foul of excessive delegation. These sections enable the authority (UIDAI) to share a response other than ‘yes’ or ‘no’ while giving information to a requesting entity, to develop policy, procedure and systems for issuing Aadhaar numbers, to collect and retain information (authentication records) about an individual, to be bound by the central government on questions of policy, to make regulations to such an extent that they literally could be construed as a separate act. These all powers should not be given in the hands of the administration and should be strictly defined in scope by the legislature which it fails to do and hence, the act suffers from excessive delegation.

The above concerns exhibit that Aadhaar Act violates Articles 14, 19 and 21 of the constitution; infringing the right to privacy (which is now firmly established to be a part of Article 19 and 21), and Article 14 because any potential use of the data through aggregation can result in unlawful differential treatment of individuals).

These concerns around the Aadhaar Act call for a stronger data protection law; the Srikrishna Committee Report on data protection shall be discussed in the next part.

(Digvijay is currently a student at Dr. Ram Manohar Lohiya National Law University, Lucknow.)

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