331) We would like to reproduce the following observations of English quote in Murray v. Big Pictures (UK) Ltd.109 where greatest 109(2008) 3 WLR 1360 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 398 of 567 significance is attached to the privacy right when it comes to children. That was a case where photographer had taken a series of photographs of a writer’s infant son, which were later published in a newspaper. The issue was whether there was misuse of private information by taking photographs. It was held that:
“The question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher...It is at least arguable that David had a reasonable expectation of privacy. The fact that he is a child is in our view of greater significance than the judge thought.” We may also record at this stage that various circulars, orders and notifications are issued by different Ministries and Departments under Section 7 of the Aadhaar Act which pertain to children. Some of these are:
(1) National Child Labour Project (NCLP).
(2) Scholarship schemes which are given to school students, like National Means-cum-Merit Scholarship Scheme; National Scheme of Incentive to Girls for Secondary Education; Benefit to 6 to 14 years children under Sarva Shiksha Abhiyan; Inclusive Education of the Disabled at Writ Petition (Civil) No. 494 of 2012 & connected matters Page 399 of 567 Secondary State; and Mid-day Meal for Children.
(3) Assistance/Scholarship given by the Department of Empowerment to the Persons with Disabilities, which include Scholarship Schemes for education of students with disabilities.
(4) Following Schemes floated by the Ministry of Women and Child Development, some of which relate to children:
(a) Supplementary Nutrition Programme under ICDS Scheme.
(b) Payment of honorarium to AWWs & AWHs under ICDS Scheme.
(c) Supplementary Nutrition for children offered at Creche Centres.
(d) Honorarium paid towards the Creche Workers and Creche Helpers.
(e) Maternity Benefit Programme (MBP).
(f) Scheme for Adolescent Girls.
(g) National Mission for Empowerment of Women.
(h) ICDS Training Programme.
(i) Ujjawala Scheme.
(j) Swadhar Scheme.
(k) Integrated Child Protection Scheme.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 400 of 567
(l) STEP programme.
(m) Rashtriya Mahila Kosh.
(n) Pradhan Mantri Matru Vanana Yojana.
(5) Painting and Essay competitions for school children under IEC component of Human Resource Development and Capacity Building.
332) After considering the matter in depth and having regard to the discussion aforesaid, we hold as under:
(a) For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian.
(b) On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents, shall be given the right to exit from Aadhaar, if they so choose.
(c) Insofar as the school admissions of children are concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy. Further, having regard to the fact that a child between the age of 6 to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as ‘benefit’ as well.
(d) Benefits to children between 6 to 14 years under Sarva Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar Writ Petition (Civil) No. 494 of 2012 & connected matters Page 401 of 567 enrolment.
(e) For availing the benefits of other welfare schemes which are covered by Section 7 of the Aadhaar Act, though enrolment number can be insisted, it would be subject to the consent of the parents, as mentioned in (a) above.
(f) We also clarify that no child shall be denied benefit of any of these schemes if, for some reasons, she is not able to produce the Aadhaar number and the benefit shall be given by verifying the identity on the basis of any other documents. We may record that a statement to this effect was also made by Mr. K.K. Venugopal, learned Attorney General for India, at the Bar. Challenge to the other provisions of the Aadhaar Act:
333) The petitioners have challenged the constitutionality of certain other provisions of Aadhaar Act as well. They have submitted their reasons on the basis of which they are seeking the declaration to the effect these provisions are unconstitutional. We reproduce the provisions of Aadhaar Act as well as reasons given by the petitioners in tabulated form, as under: S.No. Provisions of the Reason for being unconstitutional Aadhaar Act
1. Section 2(c) and 2(d) - ‘Authentication Record’ includes the time of authentication and authentication and the identity of the authentication record, requesting entity. The UIDAI and the read with Section 32 Authentication Service Agency (ASA) is Writ Petition (Civil) No. 494 of 2012 & connected matters Page 402 of 567 permitted to store this authentication record for 2+5 years (as per Regulations 20 and 26/27 of the Authentication Regulations).
By definition it provides for real-time surveillance and profiling. The record stores both the time and the identity of the requesting entity.
2. Section 2(h) read with The notion of CIDR is by itself an Section 10 of CIDR unconstitutional database. The statute cannot operate without a CIDR. The notion of a CIDR where every individual’s biometric as well as demographic information is centrally stored is an authoritarian or police state construct and has no place in a democracy that guarantees individual freedom. A CIDR from where data can be backed, and which is operated not by the respondents but by foreign entities, is conceptually and constitutionally an impermissible compromise on national sovereignty and security.
Notably, Section 10 empowers UIDAI to appoint one or more entity to establish and maintain the CIDR.
3. Section 2(l) read with The notion of an enrolling agency as Regulation 23 of the defined in Section 2(l) is also Aadhaar (Enrolment unconstitutional inasmuch as the agency, and Updates) as defined, need not be a Government Regulation - ‘enrolling entity but could be a private entity. The agency’ collection of sensitive personal biometric and demographic data and information for the purposes of storage must be conducted by a Government agency alone since this is a bare minimum procedural safeguard against the misuse and commercial exploitation of private personal information. The State, acting as a trustee and fiduciary, cannot delegate or require private enrolling agencies to discharge this non-delegable function. Moreover, an enrolling agency that is operated privately cannot be entrusted with the crucial tasks of explaining the voluntary nature of Aadhaar Writ Petition (Civil) No. 494 of 2012 & connected matters Page 403 of 567 enrolments and securing informed consent.
4. Section 2(v) - ‘resident’ The expression ‘Resident’ defined in Section 2(v) is arbitrary and unconstitutional inasmuch as the Act creates no credible machinery for evaluating a claim that a person has been residing in India for a period of 182 days or more, in the 12 months immediately preceding the date of application for enrolment. The forms being used by the respondents as also proof of identification and proof of address requirement being used by the respondents until enactment of the statute nowhere require any proof relating to residence for 182 days. The impugned Act purports to validate all these enrolments. The forms being used by the respondents do not even contain a declaration regarding the enrolee being resident for 182 days. Further, there is no requirement in the definition of ‘Resident’ that the person has to be legally resident and the expression would wrongly take in illegal immigrants as well.
5. Section 3 – Aadhaar It is an ‘entitlement’. It cannot be Number understood to be mandatory. The
information provided under Section 3(2) is of no relevance if obtaining Aadhaar is made mandatory. By design, Aadhaar was never meant to be mandatory.
6. Section 5 – Special Section 5 of the Aadhaar Act, inasmuch as treatment to children it extends to children and persons with disabilities, implies that the State is securing biometric and demographic data even before the age of consent insofar as children are concerned. The Act in its coercive reach and application to children who have not attained the age of consent is per se unconstitutional and violate of the fundamental rights of the children.
7. Section 6 – Update of Section 6 of the Act is unconstitutional information inasmuch as it enables the respondents to continually compel residents to periodically furnish demographic and biometric information. This provision is coercive in Writ Petition (Civil) No. 494 of 2012 & connected matters Page 404 of 567 operation and effect and not only undermines the so-called ‘voluntary’ nature of the programme (as falsely claimed by the respondents) but also undermines the false claim with respect to the ‘reliability of biometrics’.
8. Section 8 Section 8 is unconstitutional inasmuch as it enables tracking, tagging and profiling of individuals through the authentication process. It is a charter for surveillance in real time and with a degree of specificity that enables persons’ physical movements to be traced in real time. The authentication mandate in terms of Section 8 is not being worked by the respondents through any proprietary technology and is outsourced to foreign entities or entities under the ownership and control of foreign companies and corporations. The entire framework and working of the authentication procedure in terms of Section 8 is an impermissible, permanent and irreversible compromise of national sovereignty and national security.
9. Section 9 Section 9 of the Aadhaar Act is also unconstitutional inasmuch as the Aadhaar number is de facto serving as proof of citizenship and domicile. This is seen from various media reports where even in the absence of any rigorous verification process, Aadhaar numbers are being issued. The petitioners submit that equally subversive of national security and national integrity is the practice of passports being issued based upon an Aadhaar card. In other words, persons who may not be entitled to passports are having Aadhaar numbers issued and thereafter securing passports in violation of the citizenship provisions.
10. Chapter IV – Sections The petitioners submit that the whole of 11 to 23 Chapter IV of the Act comprising Sections 11 to 23 is ultra vires and unconstitutional. The Constitution does not permit the establishment of an authority that in turn Writ Petition (Civil) No. 494 of 2012 & connected matters Page 405 of 567 through an invasive programme can chain every Indian citizen/resident to a central data bank and maintain lifelong records and logs of that individual. The Constitution of India when read as a whole is designed for a nation of free individuals who enjoy a full range of rights and who are entitled under the Constitution to lead their lives without any monitoring or scrutiny or continuous oversight by the State or any of its organs. The high value of personal freedom runs throughout the fabric of the Indian Constitution and any authority created for the purpose of ‘cradle to grave’ scrutiny is directly violative of the personal freedom charter built into the Indian Constitution. The Constitution of India does not contemplate a ‘nanny state’ where the State oversees every individual’s conduct and maintains a record of individual interactions. The UIDAI by design and function is created for an absolutely unconstitutional objective of invading privacy, electronically overseeing individuals and tethering them to a central data repository that will maintain lifelong records. The notion of individual freedom must entail the right to be alone; the right of an individual to be free from any monitoring so long as that individual does not breach or transgress any criminal law. Here, the establishment of the second respondent is for an unconstitutional purpose of overseeing and monitoring individual conduct even where the person does not remotely fall foul of any law. The second respondent is a State organ designed to invade individual freedom and whose purpose is to constrict individual freedom.
11. Sections 23 and 54 – Section 23, read with Section 54 of the excessive delegation Aadhaar Act, is unconstitutional on the ground of excessive delegation.
A perusal of the sub-clauses in Section 23(2) and Section 54(2) indicate that on every crucial aspect pertaining to biometric Writ Petition (Civil) No. 494 of 2012 & connected matters Page 406 of 567 data, demographic information, the operation and working of the CIDR, generating and assigning Aadhaar numbers, authentication of Aadhaar numbers, omitting and deactivating Aadhaar numbers, commercial exploitation of information collected by the Government, etc. are all left entirely to the UIDAI without any sufficient defined legislative policy indicating the limits within which the UIDAI may legitimately operate.
Having regard to the invasive nature of the Aadhaar programme, its deep and pervasive impact on civil liberties and the fiduciary/trusteeship principle based on which data and information is being collected, it was incumbent upon the legislature to set out detailed and adequate limits to restrict the discretion conferred on the UIDAI. The impugned provisions virtually give an unlimited charter to the UIDAI to ride rough shod over fundamental rights by framing regulations as it pleases.
12. Section 23(2)(g) read This empowers the UIDAI alone to omit and with Chapter VI & VII – deactivate an Aadhaar number with almost Regulations 27 to 32 of no redressal to the individual Aadhaar the Aadhaar (Enrolment number holder. Regulation 27(2) provides and Update) that upon cancellation of an Aadhaar Regulations, 2016 number, all services provided by the authority shall be permanently disabled.
Regulation 28(2) provides that upon deactivation of an Aadhaar number, all numbers shall be temporarily suspended till such time that the Aadhaar number holder updates or rectifies the alleged error.
Notably, as per Regulation 30, there shall be a post facto communication of omission or deactivation of the Aadhaar number shall be informed to the Aadhaar number holder.
The only redressal mechanism provided under the Aadhaar Act is under Regulation 32 wherein a grievance redressal call centre shall be provided by the UIDAI. This provision provides unbridled power to the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 407 of 567 UIDAI to switch of the life of an individual.
There is absolutely no redressal mechanism for the individual. He is not even provided with an opportunity of hearing prior to deactivation, which violates principles of natural justice.
13. Section 29 This Section is liable to be struck down inasmuch as it pertains sharing of identity information. The provisions suffer from the vice of permitting the spread and dissemination of sensitive personal information through a network of entities and individuals for commercial gain or otherwise and allows for the sharing of information beyond the ostensible object of targeted deliveries.
Both the biometric as well as the demographic information are entitled to the highest degree of protection and the impugned provision, inasmuch as it draws a distinction between core biometric information and other information, creates an artificial distinction into two classes of information which in law are both entitled to equal protection against sharing or dissemination.
Sub-section (4) permits UIDAI by regulation to permit ‘core biometric information’ to be displayed publicly.
14. Section 33 Section 33 is unconstitutional inasmuch as it provides for the use of the Aadhaar database for police investigation pursuant to an order of a competent court. Section 3 violates the protection against self-
incrimination as enshrined under Article 20(3) of the Constitution of India.
Furthermore, Section 33 does not afford an opportunity of hearing to the concerned individual whose information is sought to be released by the UIDAI pursuant to the Court’s order. This is contrary to the principles of natural justice.
Section 33(2) provides for disclosure of Writ Petition (Civil) No. 494 of 2012 & connected matters Page 408 of 567 information in the interest of national security pursuant to a direction of a competent officer. The said provision is also hit by the principles of protection against self-incrimination, as enshrined under Article 20(3) of the Constitution.
Further, the impugned Act does not define ‘interest of national security’ or otherwise limit the circumstances where the said provision can be invoked. This makes the impugned provision unconstitutional as it suffers from the vice of vagueness and arbitrariness.
15. Section 47 Section 47 of the impugned Act is unconstitutional inasmuch as it does not allow an individual citizen who finds that there is a violation of the impugned Act to initiate the criminal process. There could be several circumstances where UIDAI itself or some third party is guilty of having committed offences under the Act. By restricting the initiation of the criminal process, the Aadhaar Act renders the penal machinery ineffective and sterile. The said section creates a bar on a court to take cognizance of any offence under the impugned Act, save on a complaint made by the UIDAI or an officer authorized by it.
In effect there is a bar of cognizance of a complaint made by an individual for breach of his biometric or demographic information which has been collected by the respondent. Such bar is unconstitutional as it forecloses legal remedy to affected individuals.
16. Section 48 – Power of This Section is vague and arbitrary Central Government to inasmuch as it permits the Central supersede UIDAI Government to take over the UIDAI. The Act does not define a ‘pubic emergency’.
This Section empowers the Central Government in an ‘emergency’ situation to be in a position to completely control the life of every citizen who is enrolled with the UIDAI.
17. Section 57 Section 57 is patently unconstitutional Writ Petition (Civil) No. 494 of 2012 & connected matters Page 409 of 567 inasmuch as it allows an unrestricted extension of the Aadhaar platform to users who may be Government agencies or private sector operators. This provision clearly shows that the impugned Act has a much wider scope than what may legitimately be considered as a Money Bill. Moreover, this provision enables the seeding of the Aadhaar number across service providers and other gateways and thereby enables the establishment of a surveillance state. The impugned provision enables the spread of applications and Aadhaar dependent delivery systems that are provided not from Consolidated Fund of India resources but through any other means.
It is submitted that Section 57 also enables commercial exploitation of an individual’s biometrics and demographic information by the respondents as well as private entities. It ensures that creation of a surveillance society, where every entity assists the State to snoop upon an Aadhaar holder.
18. Section 59 Section 59 of the impugned Act is unconstitutional inasmuch as it seeks to validate all action undertaken by the Central Government pursuant to the Notification dated January 28, 2009. It is submitted that there was no consent, let alone informed consent obtained from individuals at the time of enrolment under the said notification.
Such enrolment which has been conducted without obtaining adequate consent is unconstitutional as it amounts to wrongful deprivation of the most intimate personal information of an individual. Indeed, taking of an individual’s biometric information without informed consent is a physical invasion of his or her bodily integrity. The collection of demographic information through private entities and without proper counselling or written informed consent is Writ Petition (Civil) No. 494 of 2012 & connected matters Page 410 of 567 illegal and incapable of being retrospectively ratified. All these records which have been illegally obtained and created without necessary consent out to be destroyed and cannot be said to be validated by the impugned provision. The Parliament cannot create a legal fiction of ‘consent’ where there was none.
The executive under the Constitution of India cannot take away someone’s fundamental right to privacy and then support its action on the proposition of law that ‘retrospectively’ deems consent must have been given.
The said provision seeks to validate any action taken by the Central Government alone. The action of private enrolers is not even sought to be protected. Therefore, all collections made by private entities under the said notification should also stand invalidated and all data collected by private entities should be destroyed forthwith.
334) We have already dealt with the issue of validity of some of the provisions. We would now advert to the remaining provisions, validity whereof is questioned.
Keeping in view the preceding discussion, challenge to most of these provisions would fail. Insofar as Section 2(l) read with Regulation 23 of the Aadhaar (Enrolment and Update) Regulations is concerned which deals with ‘enrolling agency’, main challenge is on the ground that the work of an enrolment could not have been given to a private entity as private entity cannot be entrusted with the crucial task of explaining the nature Writ Petition (Civil) No. 494 of 2012 & connected matters Page 411 of 567 of Aadhaar enrolment and securing informed consent. Further, the task of collection of sensitive personal biometric and demographic data and information for the purpose of storage cannot be given to private hands. However, having regard to the nature of process that has been explained by the Authority, which ensures that immediately on enrolment, the concerned data collected by the private entity is beyond its control; it gets encrypted; and stands transmitted to CIDR, we do not find any basis of the apprehension expressed by the petitioners.
335) Insofar as Section 2(v) is concerned which defines resident, there is nothing wrong with the definition. The grievance of the petitioners is that the Aadhaar Act creates no credible machinery for availing a claim that a person has been residing in India for 182 days or more. Apprehension is expressed that this expression may also facilitate the entry of illegal immigrants.  We direct the respondents to do the needful in this behalf. However, that would not render the definition unconstitutional.
336) Section 3, by the very language thereof, mentions that it is an enabling provision which ‘entitles’ every resident to obtain Aadhaar number. Therefore, it is voluntary in nature. This is so Writ Petition (Civil) No. 494 of 2012 & connected matters Page 412 of 567 held by Division Bench of this Court in Binoy Viswam in the following words:
“93. Before proceeding to discuss this argument, one aspect of the matter needs clarification. There was a debate as to whether the Aadhaar Act is voluntary or even that Act makes enrolment under Aadhaar mandatory.
94. First thing that is to be kept in mind is that the Aadhaar Act is enacted to enable the Government to identify individuals for delivery of benefits, subsidies and services under various welfare schemes. This is so mentioned in Section 7 of the Aadhaar Act which states that proof of Aadhaar number is necessary for receipt of such subsidies, benefits and services. At the same time, it cannot be disputed that once a person enrols himself and obtains Aadhaar number as mentioned in Section 3 of the Aadhaar Act, such Aadhaar number can be used for many other purposes. In fact, this Aadhaar number becomes the Unique Identity (UID) of that person. Having said that, it is clear that there is no provision in the Aadhaar Act which makes enrolment compulsory. May be for the purpose of obtaining benefits, proof of Aadhaar card is necessary as per Section 7 of the Act. The proviso to Section 7 stipulates that if an Aadhaar number is not assigned to enable an individual, he shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service. According to the petitioners, this proviso, which acknowledges alternate and viable means of identification, and therefore makes Aadhaar optional and voluntary and the enrolment is not necessary even for the purpose of receiving subsidies, benefits and services under various schemes of the Government. The respondents, however, interpret the proviso differently and their plea is that the words “if an Aadhaar number is not assigned to an individual” deal with only that situation where application for Aadhaar has been made but for certain reasons Aadhaar number has not been assigned as it may take some time to give Aadhaar card. Therefore, this proviso is only by way of an interim measure till Aadhaar number is assigned, which is otherwise compulsory for obtaining certain benefits as stated in Section 7 of the Aadhaar Act. Fact remains that as per the Government and UIDAI itself, the requirement of obtaining Aadhaar number is voluntary.Writ Petition (Civil) No. 494 of 2012 & connected matters Page 413 of 567
It has been so claimed by UIDAI on its website and clarification to this effect has also been issued by UIDAI.
95. Thus, enrolment under Aadhaar is voluntary. However, it is a moot question as to whether for obtaining benefits as prescribed under Section 7 of the Aadhaar Act, it is mandatory to give Aadhaar number or not is a debatable issue which we are not addressing as this very issue is squarely raised which is the subject-matter of other writ petition filed and pending in this Court.” Therefore, the apprehension of the petitioners that Section 3 is mandatory stands assuaged.
337) Section 5 is a special measure for issuance of Aadhaar number to certain category of persons which attempts to take care of certain disabilities with which certain individuals may be suffering. Therefore, this provision is for the benefit of the categories of persons mentioned in Section 5. No doubt, it mentions children and persons with disabilities as well, that is an aspect is already dealt with separately.
338) Section 6 deals only with the updation of demographic and biometric information. This may become necessary under certain circumstances. That by itself does not take away the voluntary nature of the programme.
339) Insofar Section 9 is concerned, validity thereof is challenged primarily on the ground that it serves as a proof of citizenship and Writ Petition (Civil) No. 494 of 2012 & connected matters Page 414 of 567 domicile as well and some apprehensions are expressed on that basis. Such apprehensions have already been taken care of while discussing the issue no. 1 pertaining to surveillance.
340) We have already discussed in detail the purpose of constituting the Authority. In fact, the Act cannot operate without such an Authority and, therefore, it’s constitution is imperative. Challenge to validity of Sections 11 to 23 is predicated on the arguments of surveillance etc. fails, having regard to our detailed discussion on the said aspect.
341) Section 23 read with Section 54 give power to the Authority to make certain Regulations. We do not find that this provision gives excessive delegation to the Authority. These aspects have already been discussed while determining the issue pertaining to surveillance.
342) Apprehension expressed qua Section 29 are equally unfounded.
This Section rather imposes restrictions on sharing information. No doubt, sub-section (2) states that the identity information (and specifically excludes core biometric information) can be shared only in accordance with the provisions of the Act and in such a manner as may be specified by Regulations. That would not Writ Petition (Civil) No. 494 of 2012 & connected matters Page 415 of 567 make the provision unconstitutional when it is with the consent of the individual. In case, any regulation is made which permits sharing of information that may contain undesirable circumstance/reason for sharing information, such a regulation can always be struck down. Insofar as sub-section (4) is concerned, it is generally in favour of the residents/individuals inasmuch as it states that information collected or created under this Act shall not be published, displayed or posted publicly. The is grievance, however, is that this provision enables the Authority to publish or display etc. such an information ‘for the purposes as may be specified by regulations’. The apprehension is that under this provision, the Government can always make regulations permitting publication of such information under certain circumstances. At present, regulations which are in force are the Aadhaar (Sharing of Information) Regulations, 2016. Chapter II thereof is titled ‘restriction on sharing of identity information’. Regulation 3(1) which falls under this chapter puts a categorical ban on sharing of core biometric information collected by the Authority under the Act, by mandating that it shall not be sharing with anyone for any reason whatsoever. Sub-regulation (2) of Regulation 3 permits sharing of demographic information and photograph of an individual collected by the Authority under the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 416 of 567 Act, only with the consent of the Aadhaar number holder, that too for authentication process in accordance with Authentication Regulations. As already held by us, insofar as utilisation of subsidies, benefits and services are concerned, the authentication would be needed by the provider of such services which would be the requesting entity and this provision has already been upheld. Sub-regulation (3) permits sharing of authentication records of Aadhaar number holder with him in accordance with Regulation 28 of the Authentication Regulations. This provision facilitates obtaining the information from the Authority by the Aadhaar number holder herself. We are, thus, of the opinion that Section 29 and the sharing regulations are the provisions enacted to protect the interest of Aadhaar card holders as they put restrictions on the sharing of information, which may be described as provisions pertaining to data protection and surveying legitimate state aim/interest as well. No doubt, Section 29 gives power to the delegatee to make regulations. However, as already clarified above, as and when a regulation is made, which impinges upon the privacy right of the Aadhaar card holders, that can always be challenged. As of now, sharing regulations do not contain any such provision. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 417 of 567
343) Section 33 provides for disclosure of information in certain cases.
The challenge to this provision is predicated on the ground that it provides for the use of Aadhaar database for police verification, which is against the ethos of Article 20(3) of the Constitution of India, which is a rule against self-incrimination. In order to appreciate this argument, we would like to reproduce Section 33 in its entirety:
“33. (1) Nothing contained in sub-section (2) or sub-section (5) of section 28 or sub-section (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a District Judge:
Provided that no order by the court under this sub- section shall be made without giving an opportunity of hearing to the Authority.
(2) Nothing contained in sub-section (2) or sub-section (5) of section 28 and clause (b) of sub-section (1), sub-section (2) or sub-section (3) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government:
Provided that every direction issued under this sub- section, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect:
Provided further that any direction issued under this sub-section shall be valid for a period of three months from the date of its issue, which may be extended for a further Writ Petition (Civil) No. 494 of 2012 & connected matters Page 418 of 567 period of three months after the review by the Oversight Committee.”
344) A close look at sub-section (1) of Section 33 would demonstrate that the sub-section (1) is an exception to Section 28(2), Section 28(5) and Section 29(2) of the Act. Those provisions put a bar on the disclosure of an information thereby protecting the information available with the UIDAI in respect of any person. However, as per sub-section (1), such information can be disclosed if there is an order of a court which order is not inferior to that of a District Judge. This provision, therefore, only states that in suitable cases, if court passes an order directing an Authority to disclose such an information, then the Authority would be obliged to do so.
Thus, an embargo contained in Sections 28 and 29 is partially lifted only in the eventuality on passing an order by the court not inferior to that of District Judge. This itself is a reasonable safeguard. Obviously, in any proceedings where the Court feels such an information is necessary for the determination of controversy that is before the Court, before passing such an order, it would hear the concerned parties which will include the person in respect of whom the disclosure of information is sought. We, therefore, clarify that provisions of sub-section (1) of Section 33 by reading into the provisions that an individual whose Writ Petition (Civil) No. 494 of 2012 & connected matters Page 419 of 567 information is sought to be released shall be afforded an opportunity of hearing. There is a reasonable presumption that the said court shall take into consideration relevant law including Article 20(3) of the Constitution as well as privacy rights or other rights of that person before passing such an order. Moreover, a person in respect of whom order is passed shall also be heard and will have right to challenge the order in a higher forum. Not only this, proviso to Section 33(1) puts an additional safeguard by providing that even UIDAI shall be heard before an order is passed to this effect by the Court. In that sense, the Authority is to act as trustee and it may object to passing of the order by the court. Such a happening is actually taken place. We have already noticed that against the order of the High Court of Bombay in some criminal proceedings, order was passed directing the Authority to give biometric information of a person, the Authority had filed Special Leave Petition (Criminal) No. 2524 of 2014 challenging the said order on the ground that giving of such biometric information was contrary to the provisions of the Aadhaar Act as the information was confidential. This Court stays the operation of the said order which depicts that there are sufficient safeguards provided in sub-section (1) of Section 33 itself.
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 420 of 567
345) Adverting to sub-section (2) of Section 33, it can be seen that this provision enables disclosure of information including identity information records in the interest of national security. This provision further states that the Authority is obliged to disclose such information in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government. Proviso thereto sub-section (2) puts an additional safeguard by prescribing that every direction issued under this sub-section shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology before it takes effect. Further, such a direction is valid only for a period of three months from the date of its issue which can be extended by another three months.
346) Main contention of the petitioners in challenging the provisions of sub-section (2) of Section 33 are that no definition of national security is provided and, therefore, it is a loose ended provision susceptible to misuse. It is also argued that there is no independent oversight disclosure of such data on the ground of Writ Petition (Civil) No. 494 of 2012 & connected matters Page 421 of 567 security and also that the provision is unreasonable and disproportionate and, therefore, unconstitutional.
347) We may point out that this Court has held in Ex-Armymen’s Protection Services Private Limited v. Union of India & Ors.110 that what is in the interest of national security is not a question of law but it is a matter of policy. We would like to reproduce following discussion therefrom:
“16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All ER 122 (HL)] : (AC p. 192C) “… [in the matter] of national security is not a question of law. It is a matter of judgment and policy.
Under the Constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”
17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases, it is the duty of the court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.” 110 (2014) 5 SCC 409 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 422 of 567
348) Even in K.S. Puttaswamy, this Court has recognised data retention by the Government which may be necessitated in the public interest and in the interest of national security. We may also usefully refer to the judgment of People’s Union for Civil Liberties (PUCL) v. Union of India & Anr.111. In that case, action of telephone tapping was challenged as serious invasion of individual’s privacy. The Court found that Section 5(2) of the Telegraph Act, 1885 permits the interception of messages in circumstances mentioned therein i.e. ‘occurrence of any public emergency’ or ‘in the interest of public safety’. The Court explained these expressions in the following manner:
“28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said section. “Occurrence of any public emergency” or “in the interest of public safety” are the sine qua non for the application of the provisions of Section 5(2) of the Act.
Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression “public safety” means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone-tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for 111 (1997) 1 SCC 301 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 423 of 567 preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone- tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.”
349) Having regard to the aforesaid legal position, disclosure of information in the interest of national security cannot be faulted with. However, we are of the opinion that giving of such important power in the hands of Joint Secretary may not be appropriate. There has to be a higher ranking officer along with, preferably, a Judicial Officer. The provisions contained in Section 33(2) of the Act to the extent it gives power to Joint Secretary is, therefore, struck down giving liberty to the respondents to suitably enact a provision on the aforesaid lines, which would adequately protect the interest of individuals.
350) We now advert to the challenge laid to Section 47 of the Aadhaar Act, which is captioned as ‘cognizance of offences’, it reads as under:
“47. (1) No court shall take cognizance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.
(2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act.” Writ Petition (Civil) No. 494 of 2012 & connected matters Page 424 of 567
351) Certain acts in Chapter VII are treated as offences and penalties are also provided, from Section 34 to Section 43.
352) Section 44 clarifies that this Act would apply for offence or contravention committed even outside India. Insofar as investigation of these offences is concerned, Section 45 provides that a police officer not below the rank of Inspector of Police shall investigate any offence under this Act. Section 46, thereafter, clarifies that penalties imposed under this Act shall not prevent the imposition of any other penalty or punishment under any other law for the time being in force. This scheme of Chapter VII makes very strict provisions in respect of enforcement of the Act which includes data protection as well. Last provision in Chapter VII is Section 47 which provides that the cognizance would be taken only on a complaint made by the Authority or any officer or person authorised by it. Petitioners feel aggrieved by this provision as it does not permit an individual citizen whose rights are violated, to initiate the criminal process. Apprehensions are expressed by submitting that there may be a possibility where the Authority itself or some Governmental Authority may be guilty of committing the offences under the Act and, in such a situation, the Authority or any officer or person authorised by it may choose Writ Petition (Civil) No. 494 of 2012 & connected matters Page 425 of 567 not to file any complaint.
353) According to the respondents, the rationale behind Section 47 is to maintain purity and integrity of CIDR and the entire enrolment storage in the CIDR and authentication exercise can be handled only by the Authority. For this reason, it is the Authority which is empowered to lodge the complaint. It is also pointed out that similar provisions akin to Section 47 of the Aadhaar Act are contained in many other statutes. Reference is made to Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957, Section 34 of the Bureau of Indian Standards Act, 1986, Section 34 of the Telecom Regulatory Authority of India Act, 1997, Section 47 of the Banking Regulation Act, 1949, Section 26(1) of the Securities and Exchange Board of India Act, 1992, Section 19 of the Environment (Protection) Act, 1986, Section 43 of the Air (Prevention and Control of Pollution) Act, 1981 and Section 57(1) of the Petroleum and Natural Gas Regulatory Board Act, 2006. The respondents have also submitted that validity of such provisions have been tested and affirmed by this Court. Reference is made to the judgment in Raj Kumar Gupta v. Lt. Governor, Delhi & Ors.112. The respondents have also taken support of the decision of this Court in State (NCT of Delhi) v. 112(1997) 1 SCC 556 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 426 of 567 Sanjay113 wherein Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 was tested. Insofar as grievance and apprehension of the petitioners is concerned, it can be taken care on interpreting the provisions by holding that the Authority can lodge a complaint of its own motion or at the request of the individual whose rights are affected thereby.
Notwithstanding the above, we are of the opinion that it would be in the fitness of things if Section 47 is amended by allowing individual/victim whose right is violated, to file a complaint and initiate the proceedings. We hope that this aspect shall be addressed at the appropriate level and if considered fit, Section 47 would be suitably amended.
354) Section 48 cannot be treated as vague or arbitrary. ‘Public Emergency’ is the expression which has been used in several other enactments and held to be constitutional. It can always be subject to scrutiny of the Courts.
355) With this, now we come to a provision which was highly debated.
At the time of arguments, the petitioners had taken strong exception to some of its aspects. We may first take note of the exact language of this provision:
113(2014) 9 SCC 772 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 427 of 567 “57. Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect: Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI.”
356) In first blush, the provision appears to be innocuous. It enables Aadhaar holder to establish her identity for any purpose as well. In that sense, it may amount to empowering the Aadhaar number holder, when she is carrying unique identity. It is her identity card which she is able to use not only for the purposes mentioned in the Aadhaar Act but also for any other purpose.
357) The petitioners, however, have pricked the provision with the submission that it may be susceptible to making deep in-roads in the privacy of individuals and is utterly disproportionate. The taint in the provision, as projected by the petitioners, is that it brings in private parties as well, apart from the State within the fold of Aadhaar network giving untrammeled opportunity to them to invade the privacy of such user. The offending portion of the provision, according to them, is that:
(a) It allows ‘any body corporate or person’ (thereby encompassing private bodies/persons as well) to make use of authentication process, once an individual offers Aadhaar number Writ Petition (Civil) No. 494 of 2012 & connected matters Page 428 of 567 for establishing her identity.
(b) The expression ‘for any purpose’ is wide enough, which may be susceptible to misuse.
(c) This is permitted not only pursuant to any law for time being in force but also pursuant to ‘any contract to this effect’ which would mean that individuals may be forced to give their consent in the form of contract for a purpose that may be justified or not thereby permitting the private parties to collect biometric information about the said individual.
358) It is argued that there are no procedural safeguards governing the actions of the private entities. Equally no remedy is provided in case such body corporate or person fails or denies services. In this hue, it is also argued that it is an excessive piece of legislation inasmuch as taking the umbrage of ‘any law’, the regulations etc. can be framed by including within its fold much more than what is provided by Section 7 of the Aadhaar Act. It, therefore, according to the petitioners, does not meet the test of proportionality. Mr. Divan submits that Section 57 is also patently unconstitutional inasmuch as it allows an unrestricted extension of the Aadhaar platform to users who may be government agencies or private sector operators. Moreover, this provision Writ Petition (Civil) No. 494 of 2012 & connected matters Page 429 of 567 enables the seeding of the Aadhaar number across service providers and other gateways and thereby enables the establishment of a surveillance state. The impugned provision enables the spread of applications and Aadhaar dependent delivery systems that are provided not from Consolidated Fund of India resources but through any other means. He also submits that section 57 also enables commercial exploitation of an individual’s biometrics and demographic information by the Respondents as well as private entities.
359) As mentioned above, the respondents contend that it is only an enabling provision which gives further facilities to Aadhaar card holder, as per her choice and is, thus, enacted for the benefit of such individuals.
360) We have already discussed in detail the principles on which doctrine of proportionality is built upon and the test which need to be satisfied. To put in nutshell, the proportionality principles seek to safeguard citizens from excessive Government measures. The inquiry, in such cases, is that a particular measure must not be disproportionate in two distinctive utilitarian senses:
(i) The cost or burdens of the measure must not clearly exceed the likely benefits, which can be described as ‘ends’ or ‘ends- Writ Petition (Civil) No. 494 of 2012 & connected matters Page 430 of 567 benefits’ proportionality.
(ii) The measure must not be clearly more costly or more burdensome than equally alternative measures, which is also described by some jurists as a concept of necessity and narrow tailoring and can be referred to as ‘means’ or ‘alternative-means’ proportionality.
361) We have also discussed in detail the principle of proportionality that is developed in certain foreign legal regimes, particularly Germany and Canada. The Supreme Court of Canada in R. v. Oakes114 developed a two-tier constitutional control test. Once the claimant has proved a violation of a right guaranteed in the charter, the government must satisfy two criteria to establish that the limit on individual rights “can be demonstrably justified in a free and democratic society.”
362) First, measures limiting a constitutionally protected right must serve an important objective that “relate[s] to concerns which are pressing and substantial in a free and democratic society.” Legislation limiting the rights of English-speaking parents in Quebec to educate their children in English-speaking schools 115 has been found lacking an important public objective. Likewise, 114(1986) 1 SCR 103 115Quebec Ass’n of Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 431 of 567 the Supreme Court of Canada was unable to find any legitimate public objective that justified denying protection to gays and lesbians under Alberta’s human rights law in Vriend v. Alberta116. In R. v. Zundel117, it also prohibited an intrusive use of a law that was unrelated to the objectives originally contemplated by the Parliament when that law was enacted.
363) Secondly, once an important public objective or end has been established, the selected means to attain it must be “reasonable and demonstrably justified.” The Court said in R. v. Big M Drug Mart Ltd.118 that this determination involves “a form of proportionality test”. Although, it varies depending on the facts of the case, the test involves the balancing of public and individual interests based on three principles, which are as follows:
(i) the means must be rationally related to the objective. The court has infrequently struck down legislation for lack of any rational relation to the objective pursued. It employs a rather deferential and contextual approach to determine the rational relation of a provision to the desired end.
(ii) The means should “impair ‘as little as possible’ the right or freedom in question.” This is believe to be the decisive element 116(1998) 1 SCR 493 117(1992) 2 SCR 731 118 (1985) 1 SCR 295 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 432 of 567 of proportionality review. It requires that the legislature adopt the least intrusive measure capable of attaining the desired objective.
(iii) The public objective and actual effects of the means adopted for its attainment must be proportionate to an important public end or objective. The court noted that even if the means satisfies the first two criteria, it may be declared unconstitutional in view of its disproportionate harmful effects on an individual.
364) Insofar as development of law in Germany is concerned, as already discussed in detail, proportionality is defined “as an expression of general right of the citizen towards the State that his freedom should be limited by the public authorities only to the extent indispensable for the protection of the public interest.” 119 The principle of proportionality in German law incorporates three important subprinciples: suitability, necessity, and proportionality in the narrower sense. According to the High Court of Germany, any government interference with basic rights must be suitable and necessary for reaching the ends sought. Its disadvantages to individuals “are generally only permissible if the protection of others or of the public interest requires them, after having due regard to the principle of proportionality.” 119 See Nicholas Emiliou, The Principle of Proportionality in European Law: A comparative Study 5 (Kluwer Law Int’l. 1996).
Writ Petition (Civil) No. 494 of 2012 & connected matters Page 433 of 567
365) The European Union has, by and large, adopted the German system. We have also taken note of the development of doctrine of proportionality in India through various judgments120.
366) We may mention here that insofar as U.S. Supreme Court is concerned, it has refused to apply the least intrusive test 121 Though there was a debate at the bar as to whether this Court should adopt European approach of applying least intrusive test or go by American approach which repeatedly refused to apply this test. Without going into this debate, even when we apply the accepted norms laid down by this Court in Modern Dental College and Research Centre and K.S. Puttaswamy cases, we are of the view that a part of Section 57 does not pass the muster of proportionality doctrine.
367) The respondents may be right in their explanation that it is only an enabling provision which entitles Aadhaar number holder to take the help of Aadhaar for the purpose of establishing his/her identity. If such a person voluntary wants to offer Aadhaar card as a proof of his/her identity, there may not be a problem. 120 Om Kumar & Ors. v. Union of India, (2001) 2 SCC 386 where R. v. Oakes was referred to and relied upon; Teri Oat Estates (P) Ltd. v. U.T., Chandigarh & Ors., (2004) 2 SCC 130 where the Court stressed upon maintaining a proper balance between adverse effect which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve; Modern Dental College and Research Centre and K.S. Puttaswamy amongst others. 121 Vernonia School District v. Wayne Acton, 515 US 646, 132 L.Ed. 2D 564, Board of Education of Independent School District v. Lindsay Earls, 536 US 822=153 L.Ed.2d. 735. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 434 of 567
368) Section 59, which is the last provision in the Act is aimed at validating actions taken by the Central Government pursuant to notification dated January 28, 2009 till the passing of the Act. It reads as under:
“59. Anything done or any action taken by the Central Government under the Resolution of the Government of India, Planning Commission bearing notification number A-
43011/02/2009-Admin. I, dated the 28th January, 2009, or by the Department of Electronics and Information Technology under the Cabinet Secretariat Notification bearing notification number S.O. 2492(E), dated the 12th September, 2015, as the case may be, shall be deemed to have been validly done or taken under this Act.”
369) The challenge to this provision is on the premise that in the regime which prevailed prior to the passing of the Act and the enrolments into Aadhaar scheme were done, that happened without the consent of the persons who sought enrolment and, therefore, those enrolments cannot be validated by making such a provision. It was argued that even the Act makes provisions for informed consent which is to be obtained from individuals at the time of enrolment and absence of such consent makes the very enrolment as impermissible thereby violating the right to privacy and such acts cannot be validated.
370) The contention of the respondents, on the other hand, is that by the very nature of the provision, it is intended to be prospective in Writ Petition (Civil) No. 494 of 2012 & connected matters Page 435 of 567 nature with a clear purport in mind, namely, to validate the notification dated August 21, 2009 vide which the Authority was created and the Aadhaar scheme was launched by administrative fiat. The purpose is to give it a statutory backing.
371) We find that Section 59 uses the expression ‘anything done or any action under the resolution’. According to us, this terminology used in the provision by the legislature is clearly to cover all actions of the Authority including enrolment of individuals into Aadhaar scheme. The words ‘shall be deemed to have been validly done or taken under this Act’ at the end of the Section put the things beyond any pale of doubt. The legislative intent is clear, namely, to make the provision retrospective so as to cover the actions of the Authority from the date of its establishment. Reading the provision in the manner the petitioners suggest would have the effect of annulling Section 59 itself. Such an interpretation cannot be countenanced. We are of the opinion that case is squarely covered by the Constitution Bench judgment of this Court in West Ramnad Electric Distribution Co., Ltd. v. State of Madras & Anr.122as well as Bishambhar Nath Kohli & Ors. v. State of Uttar Pradesh & Ors.123. 122 (1963) 2 SCR 747 123 (1966) 2 SCR 158 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 436 of 567
372) We would also like to point out that the submission of the petitioners that a particular action or a provision or statute which is hit by Article 14 cannot be allowed to be validated is repelled by this Court in State of Mysore & Anr. v. D. Achiah Chetty, Etc.124.
The legislature is, thus, empowered to incorporate deeming provisions in a statute. This proposition has also been repeatedly affirmed by this Court. We may refer in this behalf the decision in State of Karnataka v. State of Tamil Nadu & Ors. 125 will be of relevance wherein the Court held as under:
“72. The second limb of submission of Mr Rohatgi as regards the maintainability pertains to the language employed under Section 6(2) of the 1956 Act, which reads as follows:
“6. (2) The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub-section (1), shall have the same force as an order or decree of the Supreme Court.”
73. Relying on Section 6(2), which was introduced by way of the Amendment Act, 2002 (Act 14 of 2002) that came into force from 6-8-2002, it is submitted by Mr Rohatgi that the jurisdiction of this Court is ousted as it cannot sit over in appeal on its own decree. The said submission is seriously resisted by Mr Nariman and Mr Naphade, learned Senior Counsel contending that the said provision, if it is to be interpreted to exclude the jurisdiction of the Supreme Court of India, it has to be supported by a constitutional amendment adding at the end of Article 136(2) the words “or to any determination of any tribunal constituted under the law made by Parliament under Article 262(2)” and, in such a situation, in all possibility such an amendment to the Constitution may be ultra vires affecting the power of 124(1969) 1 SCC 248 125(2017) 3 SCC 362 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 437 of 567 judicial review which is a part of basic feature of the Constitution. The learned Senior Counsel for the respondent has drawn a distinction between the conferment and the exclusion of the power of the Supreme Court of India by the original Constitution and any exclusion by the constitutional amendment. Be that as it may, the said aspect need not be adverted to, as we are only required to interpret Section 6(2) as it exists today on the statute book. The said provision has been inserted to provide teeth to the decision of the Tribunal after its publication in the Official Gazette by the Central Government and this has been done keeping in view the Sarkaria Commission's Report on Centre-State Relations (1980). The relevant extract of the Sarkaria Commission's Report reads as follows:
“17.4.19. The Act was amended in 1980 and Section 6-A was inserted. This section provides for framing a scheme for giving effect to a Tribunal's award. The scheme, inter alia provides for the establishment of the authority, its term of office and other conditions of service, etc. But the mere creation of such an agency will not be able to ensure implementation of a Tribunal's award. Any agency set up under Section 6- A cannot really function without the cooperation of the States concerned. Further, to make a Tribunal's award binding and effectively enforceable, it should have the same force and sanction behind it as an order or decree of the Supreme Court. We recommend that the Act should be suitably amended for this purpose.
*** 17.6.05. The Inter-State Water Disputes Act, 1956 should be amended so that a Tribunal's award has the same force and sanction behind it as an order or decree of the Supreme Court to make a Tribunal's award really binding.”
74. The Report of the Commission as the language would suggest, was to make the final decision of the Tribunal binding on both the States and once it is treated as a decree of this Court, then it has the binding effect. It was suggested to make the award effectively enforceable. The language employed in Section 6(2) suggests that the decision of the Tribunal shall have the same force as the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 438 of 567 order or decree of this Court. There is a distinction between having the same force as an order or decree of this Court and passing of a decree by this Court after due adjudication. Parliament has intentionally used the words from which it can be construed that a legal fiction is meant to serve the purpose for which the fiction has been created and not intended to travel beyond it. The purpose is to have the binding effect of the Tribunal's award and the effectiveness of enforceability. Thus, it has to be narrowly construed regard being had to the purpose it is meant to serve.
75. In this context, we may usefully refer to the Principles of Statutory Interpretation, 14th Edn. by G.P. Singh. The learned author has expressed thus:
“In interpreting a provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created [State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333; State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244 : 1953 Cri LJ 1094] , and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. [East End Dwellings Co. Ltd.v. Finsbury Borough Council, 1952 AC 109 : (1951) 2 All ER 587 (HL); CIT v. S. Teja Singh, AIR 1959 SC 352] But in so construing the fiction it is not to be extended beyond the purpose for which it is created [Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661; CIT v. Amarchand N. Shroff, AIR 1963 SC 1448], or beyond the language of the section by which it is created. [CIT v. Shakuntala, AIR 1966 SC 719; Mancheri Puthusseri Ahmed v.
Kuthiravattam Estate Receiver, (1996) 6 SCC 185 : AIR 1997 SC 208] It cannot also be extended by importing another fiction. [CIT v. Moon Mills Ltd., AIR 1966 SC 870] The principles stated above are ‘well- settled’. [State of W.B. v. Sadan K. Bormal, (2004) 6 SCC 59 : 2004 SCC (Cri) 1739 : AIR 2004 SC 3666] A legal fiction may also be interpreted narrowly to make the statute workable. [Nandkishore Ganesh Joshi v. Commr., Municipal Corpn. of Kalyan and Dombivali, (2004) 11 SCC 417 : AIR 2005 SC 34] ”
76. In Aneeta Hada v. Godfather Travels and Tours [Aneeta Hada v. Godfather Travels and Tours, (2012) 5 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 439 of 567 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , a three-Judge Bench has ruled thus: (SCC p. 681, paras 37-38) “37. In State of T.N. v. Arooran Sugars Ltd. [State of T.N. v. Arooran Sugars Ltd., (1997) 1 SCC 326] the Constitution Bench, while dealing with the deeming provision in a statute, ruled that the role of a provision in a statute creating legal fiction is well settled. Reference was made to Chief Inspector of Mines v. Karam Chand Thapar [Chief Inspector of Mines v. Karam Chand Thapar, AIR 1961 SC 838 : (1961) 2 Cri LJ 1], J.K. Cotton Spg. and Wvg. Mills Ltd. v. Union of India[J.K. Cotton Spg. and Wvg. Mills Ltd. v. Union of India, 1987 Supp SCC 350 : 1988 SCC (Tax) 26], M. Venugopal v. LIC [M. Venugopal v. LIC, (1994) 2 SCC 323 : 1994 SCC (L&S) 664] and Harish Tandon v. ADM, Allahabad [Harish Tandon v. ADM, Allahabad, (1995) 1 SCC 537] and eventually, it was held that when a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the Court has to examine and ascertain as to for what purpose and between which persons such a statutory fiction is to be resorted to and thereafter, the courts have to give full effect to such a statutory fiction and it has to be carried to its logical conclusion.
38. From the aforesaid pronouncements, the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart, the use of the term “deemed” has to be read in its context and further, the fullest logical purpose and import are to be understood. It is because in modern legislation, the term “deemed” has been used for manifold purposes. The object of the legislature has to be kept in mind.”
77. In Hari Ram [State of U.P. v. Hari Ram, (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583] , the Court has held that (SCC p. 293, para 18) in interpreting the provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created and after ascertaining the same, the court is to assume all those facts and consequences which are Writ Petition (Civil) No. 494 of 2012 & connected matters Page 440 of 567 incidental or inevitable corollaries for giving effect to the fiction.”
373) There is yet another angle from which the matter can be looked into. In any case, when the Aadhaar scheme/project under the Act has been saved from the challenge to its constitutionality, we see no reason to invalidate the enrolments which were made prior to the passing of this Act as it would lead to unnecessary burden and exercise of enrolling these persons all over again. Instead the problem can be solved by eliciting ‘consent’ of all those persons who were enrolled prior to the passing of the Act. Since, we have held that enrolment is voluntary in nature, those who specifically refuse to give the consent, they would be allowed to exit from Aadhaar scheme. After all, by getting Aadhaar card, an individual so enrolled is getting a form of identity card. It would still be open to such an individual to make use of the said Aadhaar number or not. Those persons who need to avail any subsidy, benefit or service would need Aadhaar in any case. It would not be proper to cancel their Aadhaar cards. If direction is given to invalidate all those enrolments which were made prior to 2016 then such persons will have to undergo the rigours of getting themselves enrolled all over again. On the other hand, those who do not get any benefit of the nature prescribed under Writ Petition (Civil) No. 494 of 2012 & connected matters Page 441 of 567 Section 7 of the Act, it would always be open for them not to make use of Aadhaar card or to make use of this card in a limited sense, namely, showing it as a proof of their identity, without undergoing any authentication process. Therefore, to a large extent, it does not harm this later category as well.
We, thus, uphold the validity of Section 59. As a corollary, Aadhaar for the period from 2009 to 2016 also stands validated. LIMITED GOVERNMENT, GOOD GOVERNANCE, CONSTITUTIONAL TRUST AND CONSTITUTIONALISM
374) Mr. Shyam Divan and Mr. Gopal Subramanium, learned senior counsel, submit that a fundamental feature of the Constitution is the sovereignty of the people with limited government authority. The Constitution limits governmental authority in various ways, amongst them Fundamental Rights, the distribution of powers amongst organs of the state and the ultimate check by way of judicial review. Article 245 of the Constitution of India is an express embodiment of the principle of limited government to the legislature inasmuch as it subjects laws to the Constitution:
“(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.”
375) The concept of limited government is the underlying difference Writ Petition (Civil) No. 494 of 2012 & connected matters Page 442 of 567 between a ‘Constitution’ and ‘Constitutionalism’. Mr. Shyam Divan refers to the introductory chapter of his book Indian Constitutional Law, Prof. M.P. Jain writes:
“Modern political thought draws a distinction between ‘Constitutionalism’ and ‘Constitution’. A country may have the ‘Constitution’ but not necessary ‘Constitutionalism’. For example, a country with a dictatorship, where the dictator’s word is law, can be said to have a ‘Constitution’ but not ‘Constitutionalism’.
The underlying difference between the two concepts is that a Constitution ought not merely to confer powers on the various organs of the government, but also seek to restrain those powers. Constitutionalism recognises the need for government but insists upon limitations being placed upon governmental powers. Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncontrolled and arbitrary. Unlimited powers jeopardise freedom of the people ... If the Constitution confers unrestrained power on either the legislature or the executive, it might lead to an authoritarian, oppressive government... to preserve the basic freedoms of the individual, and to maintain his dignity and personality, the Constitution should be permeated with ‘Constitutionalism’: it should have some in-built restrictions on the powers conferred by it on governmental organs.
‘Constitutionalism’ connotes in essence limited government or a limitation on government. Constitutionalism is the antithesis of arbitrary powers… ... As PROFESSOR VILE has remarked: “Western institutional theorists have concerned themselves with the problems of ensuring that the exercise of governmental power...should be controlled in order that it should not itself be destructive of the values it was intended to promote.”
376) Mr. Divan then cited various paragraphs from the cases of State of M.P. v. Thakur Bharat Singh126, (1967) 2 SCR 454, Gobind v.
126(1967) 2 SCR 454 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 443 of 567 State of M.P.127, S.P. Sampath Kumar v. Union of India128, Sub-
Committee on Judicial Accountability v. Union of India129, I.R.
Coelho v. State of T.N.130, Nandini Sundar v. State of Chhattisgarh131, which have reiterated and upheld the principle of limited governments and constitutionalism as a fundamental principle of our constitutional scheme.
377) He submitted that limited government is also enshrined within our Preamble, which is the essence of the Constitution of India, and entitles every individual citizen and the citizenry collectively to live, work, and enjoy their varied lives without being under the continuous gaze of the State. He cites Chelameswar, J. in K.S. Puttaswamy wherein he observed:
“The Constitution of any country reflects the aspirations and goals of the people of that country (…) The Constitution cannot be seen as a document written in ink to replace one legal regime by another. It is a testament created for securing the goals professed in the Preamble.
Part-III of the Constitution is incorporated to ensure achievement of the objects contained in the Preamble. ‘We the People’ of this country are the intended beneficiaries of the Constitution. Man is not a creature of the State. Life and liberty are not granted by the Constitution. Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty. Law is essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the exclusive source.” 127(1975) 2 SCC 148 128(1987) 1 SCC 124 129(1991) 4 SCC 699 130(2007) 2 SCC 1 131 (2011) 7 SCC 547 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 444 of 567
378) The Directive Principles of State Policy also envisage a limited government. Violation of fundamental rights cannot be justified by the State on grounds of administrative convenience in meeting its obligations under the Directive Principles of State Policy. Protection of fundamental rights is essential for public welfare contemplated under the Directive Principles of State Policy. This has been upheld in various cases such as Minerva Mills Ltd. v. Union of India132, where Y.V. Chandrachud, C.J observed:
“57. (…) just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms.”
379) Similarly, in Kesavananda Bharati v. State of Kerala133, S.M. Sikri, C.J., inter alia, held:
“209. ...In my view that meaning would be appropriate which would enable the country to achieve a social and economic revolution without destroying the democratic structure of the Constitution and the basic inalienable rights guaranteed in Part III and without going outside the contours delineated in the Preamble.
xx xx xx
299. I am unable to hold that these provisions show that some rights are not natural or inalienable rights. As a matter of fact, India was a party to the Universal Declaration of Rights which I have already referred to and that Declaration describes some fundamental rights as 132 (1980) 3 SCC 625 133 (1973) 4 SCC 225 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 445 of 567 inalienable. Various decisions of this Court describe fundamental rights as ‘natural rights’ or ‘human rights’ ...”
380) Mr. Divan quotes Seervai in his book Constitutional Law of India134: A Critical Commentary where he writes:
“17.14... In India “Public Welfare” and “Welfare State” became in the language of the Chaldean Oracle, “God- given names of unexplained power”, which absolved judges from a critical examination of the nature of fundamental rights, and why they were made legally enforceable and the nature of directive principles and why they were made legally unenforceable xx xx xx 17.20...it is simply not true that persons entrusted with the duty of implementing the directives will strive in good faith to implement them according to the expectations of the community.
xx xx xx The question then arises: What is the agency for bringing about social and economic changes which would enable a welfare state to be created? The answer is, legislative and executive power controlled by constitutional limitations including fundamental rights … xx xx xx 17.30 ... the conferment of legally enforceable fundamental rights by our Constitution on persons, citizens and groups of persons was the most effective way of securing public welfare...Anything which enables those objectives to be realised as fully as is practicable must, broadly speaking, subserve public welfare...However, the Preamble, and to a large extent, Fundamental Rights, enable us to say that our Constitution has rejected a totalitarian form of government in favour of a liberal democracy. The emphasis of the Preamble is on securing the dignity of the individual … 134 H.M. Seervai, Constitutional Law of India: A Critical Commentary (N.M. Tripathi Private Limited, Bombay, 4th Ed., Vol. 2, 1993) at pages 1928-1937.Writ Petition (Civil) No. 494 of 2012 & connected matters Page 446 of 567
xx xx xx 17.34 But can fundamental rights acting as limitations on legislative and executive power secure public welfare as the framers of our Constitution intended? The answer is “Yes”. For, when during the Emergency of 1975-77, almost all the fetters on legislative power became unenforceable, the public welfare suffered gravely and our free democratic constitution was twisted out of shape and came near to a dictatorship or a Police State ...”
381) The principles of constitutional trust, constitutional morality and good governance are also deeply intertwined with the principle of minimum government. In Manoj Narula v. Union of India135, the Court, inter alia, held:
“1. … Democracy, which has been best defined as the government of the people, by the people and for the people, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance.
xx xx xx
75. The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons in charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality.” 135 (2014) 9 SCC 1 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 447 of 567 xx xx xx
82. In a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as the primary one and any other interest secondary. The maxim salus populi suprema lex, has not only to be kept in view but also has to be revered. The faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for fundamental rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation of accountability to the collective at large. It also conveys that the decisions are taken by the decision-making authority with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogeneous compartment. The concept of good governance is not a Utopian conception or an abstraction. It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependent upon good governance in reality and the aspiration of the people basically is that the administration is carried out by people with responsibility with service orientation.
83. … The issue of constitutional trust arises in the context of the debate in the Constituent Assembly that had taken place pertaining to the recommendation for appointment of a Minister to the Council of Ministers. Responding to the proposal for the amendment suggested by Prof. K.T. Shah with regard to the introduction of a disqualification of a convicted person becoming a Minister, Dr B.R. Ambedkar had replied: (CAD Vol. VII, p. 1160) “His last proposition is that no person who is convicted may be appointed a Minister of the State.
Well, so far as his intention is concerned, it is no doubt very laudable and I do not think any Member of this House would like to differ from him on that proposition. But the whole question is this: whether we should introduce all these qualifications and disqualifications in the Constitution itself. Is it not desirable, is it not sufficient that we should trust the Prime Minister, the legislature and the public at large watching the actions of the Ministers and the actions of the legislature to see that no such infamous thing is done by either of them?I think this is a case which Writ Petition (Civil) No. 494 of 2012 & connected matters Page 448 of 567 may eminently be left to the good sense of the Prime Minister and to the good sense of the legislature with the general public holding a watching brief upon them. I therefore say that these amendments are unnecessary.”
382) It is submitted by Mr. Divan that the Aadhaar project is destructive of limited government, constitutionalism and constitutional trust.
The Constitution is not about the power of the State, but about the limits on the power of the State. Post Aadhaar, the State will completely dominate the citizen and alter the relationship between citizen and State. The features of a Totalitarian State is seen from:
(a) A person cannot conduct routine activities such as operating a bank account, holding an investment in mutual funds, receiving government pension, receiving scholarship, receiving food rations, operating a mobile phone without the State knowing about these activities.(Sections 7, 32 and 57 of the Aadhaar Act).
(b) The State can build a profile of the individual based on the trail of authentication from which the nature of the citizen’s activity can be determined. (Sections 2(d) and 32 of the Aadhaar Act and Regulation 20, 26 and 27 of the Aadhaar (Authentication) Regulation, 2016.
(c) By disabling Aadhaar the State can cause the civil death of Writ Petition (Civil) No. 494 of 2012 & connected matters Page 449 of 567 the person.(Sections 23(2)(g) of the Aadhaar Act and Regulation 27 and 28 of the Aadhaar (Enrolment and Updates) Act, 2016).
(d) By making Aadhaar compulsory for other activities such as air travel, rail travel, directorship in companies, services and benefits extended by State governments and municipal corporations etc. there will be virtually no zone of activity left where the citizen is not under the gaze of the State. This will have a chilling effect on the citizen.
(e) In such a society, there is little or no personal autonomy. The State is pervasive, and dignity of the individual stands extinguished.
(f) This is an inversion of the accountability in the Right to Information age: instead of the State being transparent to the citizen, it is the citizen who is rendered transparent to the State.
383) Mr. Sibal also added that accountability of governments and the state is a phenomenon which is accepted across the world. In furtherance of the Right to information Act, 2005 was passed intended to ensure transparency and state accountability. Through Aadhaar, on the other hand, the state seeks transparency and accountability of an individual’s multifarious Writ Petition (Civil) No. 494 of 2012 & connected matters Page 450 of 567 activities in the course of his everyday life. This fundamentally alters the relationship between the citizen and the State and skews the balance of power in favour of the State, which is anathema to the Constitution.
384) There is no dispute about the exposition of the principles of limited government and good governance, etc., as highlighted by the learned counsel for the petitioners and noted above.
We may add that we are the Republic and it becomes the duty of the Court to keep it. That can be achieved by asking the stakeholders to follow the Constitution, which we have. There are six key constitutional notions, a brilliant exposition whereof has been provided in the case of Manoj Narula v. Union of India136. The idea of constitutional renaissance was first sounded in the said judgment. It is further elaborated in the case of Government of NCT of Delhi v. Union of India137 in the opinion penned down by one of us138. It stands severally described now as “a constant awakening as regards the text, context, perspective, purpose, and the rule of law”, an awakening that makes space for a “resurgent constitutionalism” and “allows no room for absolutism” nor any “space for anarchy”. It is held, therein the term “rational 136 (2014) 9 SCC 1 137 (2018) SCC Online SC 661 138 Dipak Misra, CJI Writ Petition (Civil) No. 494 of 2012 & connected matters Page 451 of 567 anarchism” has “no entry in the field of constitutional governance or the rule of law” and by the same token constitutional text and context resolutely repudiate the lineages of absolutism or the itineraries of dictatorship. One may then say that “constitutionalism” is the space between “absolutism” and “anarchy” and its constant repair and renewal is the prime function of adjudication.
385) In an illuminating Article titled ‘A Constitutional Renaissance’ on the aforesaid verdict authored by Prof. Upendra Baxi 139, the learned Professor has made following pertinent comments:
“Awakening is a constant process; renaissance has a beginning but knows no end because everyday fidelity to the vision, spirit and letter of the Constitution is the supreme obligation of all constitutional beings. One ought to witness in daily decisions an “acceptance of constitutional obligations” not just within the text of the Constitution but also its “silences”. To thus reawaken is to be “obeisant to the constitutional conscience with a sense of constitutional vision”. Second, courts should adopt that approach to interpretation which “glorifies the democratic spirit of the Constitution”. “Reverence” for the Constitution (or constitutionalism) is the essential first step towards constitutional renaissance. Third, people are the true sovereigns, never to be reduced to the servile status of being a subject; rather as beings with rights, they are the source of trust in governance and founts of legitimacy. The relatively autonomous legislative, executive, administrative and adjudicatory powers are legitimate only when placed at the service of constitutional ends. All forms of public power are held in trust. And political power is not an end but a means to constitutional governance.” 139 Published in The Indian Express on July 16, 2018 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 452 of 567
386) Since the arguments on limited government advanced by Mr. Shyam Divan were the same as advanced by him during the hearing of Binoy Viswam, our purpose would be served by reproducing the following discussion from the said judgment:
“85. There cannot be any dispute about the manner in which Mr Shyam Divan explained the concept of “limited Government” in his submissions. Undoubtedly, the Constitution of India, as an instrument of governance of the State, delineates the functions and powers of each wing of the State, namely, the Legislature, the Judiciary and the Executive. It also enshrines the principle of separation of powers which mandates that each wing of the State has to function within its own domain and no wing of the State is entitled to trample over the function assigned to the other wing of the State. This fundamental document of governance also contains principle of federalism wherein the Union is assigned certain powers and likewise powers of the State are also prescribed. In this context, the Union Legislature i.e. Parliament, as well as the State Legislatures are given specific areas in respect of which they have power to legislate. That is so stipulated in Schedule VII to the Constitution wherein List I enumerates the subjects over which Parliament has the dominion, List II spells out those areas where the State Legislatures have the power to make laws while List III is the Concurrent List which is accessible both to the Union as well as the State Governments. The scheme pertaining to making laws by Parliament as well as by the legislatures of the State is primarily contained in Articles 245 to 254 of the Constitution. Therefore, it cannot be disputed that each wing of the State has to act within the sphere delineated for it under the Constitution. It is correct that crossing these limits would render the action of the State ultra vires the Constitution. When it comes to power of taxation, undoubtedly, power to tax is treated as sovereign power of any State. However, there are constitutional limitations briefly described above.
86. In a nine Judge Bench decision of this Court in Jindal Stainless Ltd. & Anr. v. State of Haryana & Ors. discussion on these constitutional limitations are as follows:Writ Petition (Civil) No. 494 of 2012 & connected matters Page 453 of 567
“20. Exercise of sovereign power is, however, subject to Constitutional limitations especially in a federal system like ours where the States also to the extent permissible exercise the power to make laws including laws that levy taxes, duties and fees. That the power to levy taxes is subject to constitutional limitations is no longer res-integra. A Constitution Bench of this Court has in Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109 recognised that in India the Centre and the States both enjoy the exercise of sovereign power, to the extent the Constitution confers upon them that power. This Court declared:
“56 … We would not like, however, to embark upon any theory of police power because the Indian Constitution does not recognise police power as such. But we must recognise the exercise of Sovereign power which gives the State sufficient authority to enact any law subject to the limitations of the Constitution to discharge its functions. Hence, the Indian Constitution as a sovereign State has power to legislate on all branches except to the limitation as to the division of powers between the Centre and the States and also subject to the fundamental rights guaranteed under the Constitution. The Indian States, between the Centre and the States, has sovereign power. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health, peace, morals, education and good order of the people.
Sovereignty is difficult to define. This power of sovereignty is, however, subject to constitutional limitations.”This power, according to some constitutional authorities, is to the public what necessity is to the individual. Right to tax or levy impost must be in accordance with the provisions of the Constitution.”
21. What then are the Constitutional limitations on the power of the State legislatures to levy taxes or for that matter enact legislations in the field reserved for them under the relevant entries of List II and III of the Seventh Schedule. The first and the foremost of these Writ Petition (Civil) No. 494 of 2012 & connected matters Page 454 of 567 limitations appears in Article 13 of the Constitution of India which declares that all laws in force in the territory of India immediately before the commencement of the Constitution are void to the extent they are inconsistent with the provisions of Part III dealing with the fundamental rights guaranteed to the citizens. It forbids the States from making any law which takes away or abridges, any provision of Part III. Any law made in contravention of the said rights shall to the extent of contravention be void. There is no gain saying that the power to enact laws has been conferred upon the Parliament subject to the above Constitutional limitation. So also in terms of Article 248, the residuary power to impose a tax not otherwise mentioned in the Concurrent List or the State List has been vested in the Parliament to the exclusion of the State legislatures, and the States' power to levy taxes limited to what is specifically reserved in their favour and no more.
22. Article 249 similarly empowers the Parliament to legislate with respect to a matter in the State List for national interest provided the Council of States has declared by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in national interest to do so. The power is available till such time any resolution remains in force in terms of Article 249(2) and the proviso thereunder.
23. Article 250 is yet another provision which empowers the Parliament to legislate with respect to any matter in the State List when there is a proclamation of emergency. In the event of an inconsistency between laws made by Parliament under Articles 249 and 250, and laws made by legislature of the States, the law made by Parliament shall, to the extent of the inconsistency, prevail over the law made by the State in terms of Article 251.
24. The power of Parliament to legislate for two or more States by consent, in regard to matters not otherwise within the power of the Parliament is regulated by Article 252, while Article 253 starting with a non-obstante clause empowers Parliament to make any law for the whole country or any part of the territory of India for implementing any treaty, agreement or convention with any other country Writ Petition (Civil) No. 494 of 2012 & connected matters Page 455 of 567 or countries or any decision made at any international conference, association or other body.”
87. Mr. Divan, however, made an earnest endeavour to further broaden this concept of ‘limited Government’ by giving an altogether different slant. He submitted that there are certain things that the States simply cannot do because the action fundamentally alters the relationship between the citizens and the State. In this hue, he submitted that it was impermissible for the State to undertake the exercise of collection of bio-metric data, including fingerprints and storing at a central depository as it puts the State in an extremely dominant position in relation to the individual citizens. He also submitted that it will put the State in a position to target an individual and engage in surveillance thereby depriving or withholding the enjoyment of his rights and entitlements, which is totally impermissible in a country where governance of the State of founded on the concept of ‘limited Government’. Again, this concept of limited government is woven around Article 21 of the Constitution.
88. Undoubtedly, we are in the era of liberalised democracy. In a democratic society governed by the Constitution, there is a strong trend towards the constitutionalisation of democratic politics, where the actions of democratically elected Government are judged in the light of the Constitution. In this context, judiciary assumes the role of protector of the Constitution and democracy, being the ultimate arbiter in all matters involving the interpretation of the Constitution.”
387) We may observe that the matter is examined keeping in view the fundamental principles of constitutionalism in mind, and more particularly the principle that the concept of ‘limited government’ is applicable having regard to the fact that the three limbs of the State are to act within the framework of a written Constitution which assigns specific powers to each of the wing of the State and this presupposes that the sovereign power of the Parliament Writ Petition (Civil) No. 494 of 2012 & connected matters Page 456 of 567 is circumscribed by the provisions of the Constitution and the legislature is supposed to Act within the boundaries delineated by the Constitution. The constitutionalism, which is the bedrock of rule of law, is to be necessarily adhered to by the Parliament. Further, the power of judicial review which is accorded to the courts can be exercised to strike down any legislation or executive action if it is unconstitutional.
388) When we examine this issue in the context of discussion on various issues already dealt with, it is difficult to agree with the sweeping proposition advanced by the petitioners that the Aadhaar project is destructive of limited government and constitutional trust. These submissions are premised on the architecture of the Aadhaar being constitutionally intrusive which threatens the autonomy of individuals and has a tendency of creating a surveillance state. In support, the petitioners have referred to certain provisions of the Aadhaar Act. Some provisions which we found offending are struck down, some others have been read down and some are tweaked with. We feel that the statutory regime that would now govern the citizenry, wards off such a danger, if any.
MONEY BILL Writ Petition (Civil) No. 494 of 2012 & connected matters Page 457 of 567 Is the Aadhaar Act a validly enacted law having been passed as a Money Bill?
389) Mr. Chidambaram and Mr. Datar had laid attack on the Act on the ground that the Bill it could not have been introduced and passed by the Parliament as Money Bill. It was argued that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 (for short the ‘Bill’) was wrongly certified as Money Bill under Article 110 of the Constitution of India by the Hon’ble Speaker of the Lok Sabha, thereby, virtually excluding the Rajya Sabha from the legislative process and depriving the Hon’ble President of his power of return. This, according to them, is illegal and grossly violates the constitutional provisions.
390) It was submitted that Bills are of three kinds:
(i) Ordinary Bills (Article 107); (ii) Financial Bills viz. subset of Ordinary Bills (Article 117);
(iii) Money Bill viz. subset of Financial Bills (Article 110).
391) Article 110 reads as under:
“Article 110 - Definition of "Money Bills".-
(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:--
(a) the imposition, abolition, remission, alteration or regulation of any tax;Writ Petition (Civil) No. 494 of 2012 & connected matters Page 458 of 567
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of India;
(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).
(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licenses or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.
(3) 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.
(4) There shall be endorsed on every Money Bill when it is transmit led to the Council of States under article 109, and when it is presented to the President for assent under article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill.”
392) It was submitted that a Money Bill may provide for matters Writ Petition (Civil) No. 494 of 2012 & connected matters Page 459 of 567 enumerated in Clause (a) to (f) of Article 110. Clause (g) has been added because it may be necessary to include provisions that are only “incidental” to any of matters specified in (a) to (f). The learned counsel pointed out the distinguishing features of a Money Bill are as below:
(i) It shall be introduced only on the recommendation of President (Article 117(1)).
(ii) It shall be introduced only in the House of the People (Article 117(1), 109(1)).
(iii) A Money Bill is transmitted by the Lok Sabha to the Rajya Sabha. Rajya Sabha thereafter may only make recommendations and return the Bill and not make amendments. The recommendations may or may not be accepted by the Lok Sabha. If the Money Bill is not returned within 14 days, it is deemed to have been passed by both the Houses. (Article 109(2) to Article 109(5)).
(iv) Upon submission of a Money Bill to the President for his assent, the President cannot return the Money Bill with the message requesting that the Houses will reconsider the Bill (proviso to Article 111).
Hence, it is manifest that a Money Bill that a Money Bill is a special kind of Bill that has the effect of denuding the power of the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 460 of 567 Rajya Sabha of its power to amend the Bill and depriving the President of his power to return the bill for reconsideration. On that premise, it was argued that the provisions of a Money Bill must be construed very strictly and narrowly and only if a Bill falls strictly under definition of a Money Bill (Article 110), it can be passed as a Money Bill. If the provisions of the Bill fall outside the strict definition of Money Bill, the said Bill cannot be passed as a Money Bill.
393) Great emphasis was laid on the word ‘only’ appearing in Article 110 which signified that to qualify as a Money Bill, it has to strictly fall within one or more of the clauses of Article 110. For the interpretation of the word ‘only’, reference was made to the judgment in the case of Hari Ram & Ors. v. Babu Gokul Prasad140:
“3. Section 166 of M.P. Land Revenue Code, 1954 reads as under:
“166. Any person who holds land for agricultural purposes from a tenure holder and who is not an occupancy tenant under Section 169 or a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951, shall be ordinary tenant of such land.
Explanation.— For the purposes of this section — 140(1991) Supp. 2 SCC 608 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 461 of 567
(i) any person who pays lease money in respect of any land in the form of crop share shall be deemed to hold such land;
(ii) any person who cultivates land in partnership with the tenure holder shall not be deemed to hold such land;
(iii) any person to whom only the right to cut grass or to graze cattle or to grow singhara (Trapa bispinosa) or to propagate or collect lac is granted in any land shall not be deemed to hold such land for agricultural purposes.” A bare perusal of the section indicates that any tenant other than occupancy tenant if he held the land for agricultural purposes from a tenure holder, then he became ordinary tenant by operation of law. Doubt if any stood removed by the explanation which clarifies the class of persons who could be deemed to be covered under a tenant other than occupancy tenant. Since it has been found that the land was let out to appellant not only for the right to cut grass, he could not be held to be a person who was not holding the land for agricultural purposes. The word ‘only’ in Explanation (iii) is significant. It postulates that entire land should have been used for the purposes enumerated. If part of the land was used for cultivation, then the land could not be deemed to have been granted for cutting grass only. It has been found that out of 5 and odd acres of land, the land under cultivation was 2 acres. Therefore, the negative clause in Explanation (iii) did not apply and the appellant became ordinary tenant under Section 166. In 1959, M.P. Land Revenue Code was enacted and Section 185 provided for the persons who could be deemed to be occupancy tenants. Its relevant part is extracted below:
“185. Occupancy tenants.— (1) Every person who at the coming into force of this Code holds—
(i) in the Mahakoshal Region—
(a) ***
(b) ***
(c) any land as an ordinary tenant as defined in the Madhya Pradesh Land Revenue Code, 1954 (2 of 1955);”
394) The learned counsel also referred to M/s. Saru Smelting (P) Ltd. Writ Petition (Civil) No. 494 of 2012 & connected matters Page 462 of 567 v. Commissioner of Sales Tax, Lucknow141:
“3. The contention of the respondent is that Phosphorous Bronze is an alloy containing not only the metals mentioned in the aforesaid entry but Phosphorous also and as such it is not covered under the aforesaid entry. The words “other alloy containing any of these metals only” mean that the alloy made of these metals i.e. copper, tin, nickel or zinc only and that alone is covered under the said entry. It was submitted that if any other metal or substance is included in such an alloy, the same would not be covered under the aforesaid entry.
xx xx xx
5. We were referred to various dictionary meanings of the words ‘Phosphorous Bronze’ which have been noticed by the learned Judge dealing with the case in the High Court. We are really concerned with the interpretation of the entry.
The emphasis in the entry is — either it should be pure copper, tin, nickel or zinc and if it is an alloy containing two or more metals, it must be an alloy containing these metals only. The expression “only” is very material for understanding the meaning of the entry. Since the alloy in dispute contains Phosphorous, may be in a very small quantity, it cannot fall within Entry 2(a) of the aforesaid Notification. The appeal consequently fails and is dismissed with costs.”
395) In order to demonstrate as to what would be the nature and scope of the Money Bill, reference was made to the following literature:
“RELEVANT EXCERPTS FROM ERSKINE MAY’S “PARLIAMENTARY PRACTICE” Definition of Money Bill –
Section 1(2) of the Act defines a ‘Money Bill’ as a public bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial 141(1993) Supp. 3 SCC 97 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 463 of 567 purposes of charges on the Consolidated Fund or the national Loans Fund, or on money provided by Parliament or the variation or repeal of any such charges; Supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. For the purposes of this definition the expressions ‘taxation’, ‘public money’, and ‘loan’ respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes, matters which, on the other hand, are included within the scope of Commons financial privilege.
PROCEDURE IN PASSING MONEY BILL A ‘Money Bill’ which has been passed by the House of Commons and sent up to the House of Lords at least one month before the end of the session, but is not passed by the House of Lords without amendment within one month after it is so sent up, is, unless the House of Commons direct to the contrary, to be presented for the Royal Assent and becomes an Act of Parliament on the Royal Assent being signified to it. A ‘Money Bil’, when it is sent up to the House of Lords and when it is presented to Her Majesty, must be endorsed with the Speaker’s certificate that it is such a bill. Before giving this certificate the Speaker is directed to consult, if practicable, those two members of the Panel of Chairs who are appointed for the purpose at the beginning of each session by the Committee of Selection.
When the Speaker has certified a bill to be a ‘Money Bill’ this is recorded in the Journal; and Section 3 of the Parliament Act 1911 stipulates that such certificate is conclusive for all purposes and may not be questioned in a court of law.
No serious practical difficulty normally arises in deciding whether a particular bill is or is not a ‘Money Bill’; and criticism has seldom been voiced of the Speaker’s action in giving or withholding a certificate. A bill which contains any of the enumerated matters and nothing besides is indisputably a ‘Money bill’. If it contains any other matters, then, unless these are ‘subordinate matters incidental to’ any of the enumerated matters so contained in the bill, the bill is not a ‘Money bill’. Furthermore, even if the main object of a bill is to create a new charge on the Writ Petition (Civil) No. 494 of 2012 & connected matters Page 464 of 567 Consolidated Fund or on money provided by Parliament, the bill will not be certified if it is apparent that the primary purpose of the new charge is not purely financial.” THE PARLIAMENTARY ACT, 1911 Chapter 13 of the Parliament Act, 1911 wherein Money Bill is defined as under:
“(1) … (2) A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions “taxation”, “public money”, and “loan” respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes. (3) There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate, the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection.” RELEVANT EXCERPTS FROM THE CONSTITUTION OF IRELAND (1) A Money Bill means a Bill which contains only provisions dealing with all or any of the following matters, namely, the imposition, repeal, remission, alteration or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on public moneys or the variation or repeal of any such charges; supply, the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any Writ Petition (Civil) No. 494 of 2012 & connected matters Page 465 of 567 loan or the repayment thereof; matters subordinate and incidental to these matters or any of them.
(2) In this definition the expressions “taxation”, “public money” and “loan” respectively do not include any taxation, money or loan raised by local authorities or bodies for local purposes.
RELEVANT EXCERPTS FROM KAUL & SHAKDER’S “PRACTICE AND PROCEDURE OF PARLIAMENT”, LOK SABHA SECRETARIAT AT INDIA Speaker Mavalankar observed as follows:
“Prima facie, it appears to me that the words of article 110 (imposition, abolition, remission, alteration, regulation of any tax) are sufficiently wide to make the Consolidated Bill a Money Bill. A question may arise as to what is the exact significance or scope of the word ‘only’ and whether and how far that word goes to modify or control the wide and general words ‘imposition, abolition, remission, etc.’.
I think, prima facie, that the word ‘only’ is not restrictive of the scope of the general terms. If a Bill substantially deals with the imposition, abolition, etc., of a tax, then the mere fact of the inclusion in the Bill of other provisions which may be necessary for the administration of that tax or, I may say, necessary for the achievement of the objective of the particular Bill, cannot take away the Bill from the category of Money Bills. One has to look to the objective of the bill. Therefore, if the substantial provisions of the Bill aim at imposition, abolition, etc., of any tax then the other provisions would be incidental and their inclusion cannot be said to take it away from the category of a Money Bill. Unless one construes the word ‘only’ in this way it might lead to make article 110 a nullity. No tax can be imposed without making provisions for its assessment, collection, administration, reference to courts or tribunals, etc, one can visualise only one section in a Bill imposing the main tax and there may be fifty other sections which may deal with the scope, method, manner, etc., of that imposition.
Further, we have also to consider the provisions of sub-clause (2) of article 110; and these provisions may be Writ Petition (Civil) No. 494 of 2012 & connected matters Page 466 of 567 helpful to clarify the scope of the word ‘only’, not directly but indirectly.”
396) It was further submitted that though clause (3) of Article 110 stipulates that decision of the Speaker on whether a Bill is a Money Bill or not is final, that did not mean that it was not subject to the judicial scrutiny and, therefore, in a given case, the Court was empowered to decide as to whether decision of the Speaker was constitutionally correct. In respect of Bill in question, it was argued that though Section 7 states that subsidies, benefits and services shall be provided from Consolidated Fund of India which was an attempt to give it a colour of Money Bill, some of the other provisions, namely, clauses 23(2)(h), 54(2)(m) and 57 of the Bill (which corresponds to Sections 23(2)(h), 54(2)(m) and 57 of the Aadhaar Act) do not fall under any of the clauses of Article 110 of the Constitution. Therefore, some provisions which were other than those covered by Money Bill and, therefore, introduction of the Bill as Money Bill was clearly inappropriate. It was also argued that, in this scenario, entire Act was bound to fail as there is no provision for severing clauses in Indian Constitution, unlike Section 55 of the Australian Constitution. Insofar as justiciability of the Speaker’s decision is concerned, following judgments were referred to:
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(i) Sub-Committee on Judicial Accountability v. Union of India & Ors.142
(ii) S.R. Bommai & Ors. v. Union of India & Ors.143
(iii) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.144
(iv) Ramdas Athawale v. Union of India & Ors.145
(v) Kihoto Hollohan v. Zachillhu & Ors.146
397) It was emphasised that the creation and composition of the Rajya Sabha (Upper House) is an indicator of, and is essential to, constitutional federalism. It is a part of basic structure of the Constitution as held in Kuldip Nayar & Ors. v. Union of India & Ors.147. Therefore, Rajya Sabha could not have been by-passed while passing the legislation in question and doing away with this process and also right of the President to return the Bill has rendered the statute unconstitutional.
398) The learned Attorney General as well as Mr. Dwivedi and some other counsel appearing for respondents refuted the aforesaid submissions in a strongest manner possible. It was argued that the Bill was rightly characterised as a Money Bill and introduced under Article 110 of the Constitution. According to them, the 142(1991) 4 SCC 699 143(1994) 3 SCC 1 144(2007) 3 SCC 184 145(2010) 4 SCC 1 146(1992) Supp. 2 SCC 651 147(2006) 7 SCC 1 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 468 of 567 heart of the Aadhaar Act is Section 7. It is not the creation of Aadhaar number per se which is the core of the Act, rather, that is only a means to identify the correct beneficiary and ensure “targeted delivery of subsidies, benefits and services”, the expenditure for which is incurred from the Consolidated Fund of India. A conjoint reading of the preamble to the Act along with Section 7 clearly discloses the legislative intent and the object of the Act, which is to ensure that subsidy, benefit or service for which expenditure is incurred from or the receipt therefrom forms part of, the Consolidated Fund of India should be targeted to reach the intended beneficiary. It was argued, without prejudice to the above, that the decision of the Speaker incorporated into a certificate sent to the President is final and cannot be the subject matter of judicial review. To support the aforesaid proposition, reference was made to the judgment in the case of Mohd. Saeed Siddiqui v. State of Uttar Pradesh & Anr.148 wherein the Court held as under:
“7. Leave granted in the special leave petition. This appeal is directed against the order dated 27-8-2012 passed by the Division Bench of the High Court of Judicature of Allahabad in Mukul Upadhyay v. N.K. Mehrotra [Civil Misc.
Writ Petition No. 24905 of 2012 (Writ-C 24905 of 2012), order dated 27-8-2012 (All)] whereby the High Court, while allowing the amendment application to the writ petition and holding the writ petition to be maintainable, directed to list the petition on 27-9-2012 for hearing on merits. By way of 148(2014) 11 SCC 415 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 469 of 567 the said amendment application, the writ petitioner sought to add two grounds in the writ petition viz. the Amendment Act is violative of the provisions of the Constitution of India and the same was wrongly introduced as a Money Bill in clear disregard to the provisions of Article 199 of the Constitution of India. Accordingly, it was prayed to issue a writ, order or direction in the nature of mandamus declaring the Amendment Act as ultra vires the provisions of the Constitution of India.
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12. It was further submitted by Mr Venugopal that the Amendment Act was not even passed by the State Legislature in accordance with the provisions of the Constitution of India and is, thus, a mere scrap of paper in the eye of the law. The Bill in question was presented as a Money Bill when, on the face of it, it could never be called as a Money Bill as defined in Articles 199(1) and 199(2) of the Constitution of India. Since the procedure for an ordinary Bill was not followed and the assent of the Governor was obtained to an inchoate and incomplete Bill which had not even gone through the mandatory requirements under the Constitution of India, the entire action was unconstitutional and violative of Article 200 of the Constitution of India.
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31. The main apprehension of the petitioner is that the Bill that led to the enactment of the Amendment Act was passed as a Money Bill in violation of Articles 197 and 198 of the Constitution of India which should have been passed by both the Houses viz. U.P. Legislative Assembly and U.P. Legislative Council and was wrongly passed only by the U.P. Legislative Assembly. During the course of hearing, Mr Desai, learned Senior Counsel appearing for the State of U.P., placed the original records pertaining to the proceedings of the Legislative Assembly, decision of the Speaker as well as the Governor, which we are going to discuss in the latter part of our judgment.
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34. The above provisions make it clear that the finality of the decision of the Speaker and the proceedings of the State Legislature being important privilege of the State Writ Petition (Civil) No. 494 of 2012 & connected matters Page 470 of 567 Legislature viz. freedom of speech, debate and proceedings are not to be inquired by the courts. The “proceeding of the legislature” includes everything said or done in either House in the transaction of the parliamentary business, which in the present case is enactment of the Amendment Act. Further, Article 212 precludes the courts from interfering with the presentation of a Bill for assent to the Governor on the ground of non-compliance with the procedure for passing Bills, or from otherwise questioning the Bills passed by the House. To put it clear, proceedings inside the legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. This is also evident from Article 194 which speaks about the powers, privileges of the Houses of the Legislature and of the members and committees thereof.
35. We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal v. Lok Sabha [(2007) 3 SCC 184] , it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.
36. Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedure do not render invalid an Act to which assent has been given by the President or the Governor, as the case may be.
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43. As discussed above, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. Further, as noted earlier, Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, Writ Petition (Civil) No. 494 of 2012 & connected matters Page 471 of 567 the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone is unacceptable.”
399) It was submitted that the challenge on identical grounds was, thus, repelled in the aforesaid case wherein validity of legislative enactment of a State in question, on the same ground, namely, it could not called Money Bill as defined in Article 199 of the Constitution, which was pari materia with Article 110 of the Constitution qua the Parliament. Judgment in the case of Yogendra Kumar Jaiswal & Ors. v. State of Bihar & Ors.149 was also referred to wherein the Court was concerned with Orissa Special Courts Act, 2006 which was also passed as Money Bill and was challenged as violative of Article 199 of the Constitution. It was argued that the Court held in this case that decision of the Speaker that the Bill in question is a Money Bill is final and such a decision cannot be disputed nor can the procedure of the state legislature can be questioned by virtue of Article 212 of the Constitution. The learned Attorney General specifically read out the following portion from the said judgment:
“42. In this regard, we may profitably refer to the authority in Mohd. Saeed Siddiqui v. State of U.P. [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415], wherein a three-Judge Bench while dealing with such a challenge, held that Article 212 precludes the courts from interfering with the presentation of a Bill for assent to the Governor on 149(2016) 3 SCC 183 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 472 of 567 the ground of non-compliance with the procedure for passing Bills, or from otherwise questioning the Bills passed by the House, for proceedings inside the legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. Thereafter, the Court referring to Article 199(3) ruled that the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. The Court took note of the decision in Raja Ram Pal [Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184] wherein it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny. Eventually, the Court repelled the challenge.