The arguments for day 15 of the final hearing began with Senior Advocate Arvind Datar pointing out the nature of consent in the PML Act. He stated that the Act mandated the production of consent, failing which the bank accounts would be rendered inoperable, effectively negating any consent involved. Further, he said, there was no option to opt out.
Going on the money bill aspect, Mr. Datar said that Aadhaar was meant only for the purposes mentioned in the objects of the Act and that using it for any other purpose would be invalid. Justice Chandrachud pointed out that the moment Aadhaar was extend for use by private entities, its nexus with money bill is lost, to which Mr. Datar agreed.
He further submitted that the Act was passed as a money bill without any regards to the amendments proposed by the Upper House of the Parliament. He pointed out that the Upper House has recommended the deletion of Section 57 of the Act which was rejected by the Lok Sabha. He stated that had it been passed as an ordinary bill, the recommendations of the Upper House would be considered, Section 57 would be struck down and an opt out clause be included.
Defining consent and free consent in the light of the Contract Act, 1972, he submitted that consent in this case is vitiated as it is not free. He further stated that as per the Puttaswamy judgment, it is the decisional autonomy of an individual to part or not to part with her personal information. He further stressed that it was impossible for a person to survive without an Aadhaar in the present times and that it had intruded the life of individuals from birth to death.
Discussing Section 56 of the Aadhaar Act with focus on words ‘any law’, he stated that if ‘law’ here meant delegated legislation, this section would yield for delegating essential functions, i.e., excessive delegation. Further, if the ‘law’ meant primary legislation, the section would not stand owing to violation of Article 14 and 21.
Justice Chandrachud questioned about the compelling state interest in case of private entities mandating Aadhaar under Section 57. Mr. Datar pointed out that words ‘any purpose’ under Section 57 have gained the meaning of all purpose and not limited purpose.
Mr. Datar then went on to discuss Section 7 and how the approved IDs were needed to get Aadhaar but were rendered ineffective once Aadhaar was alloted.
Going to the Binoy Viswam judgment (Aadhaar-PAN link), he stated that the reason for linking Aadhaar as cited by the respondents was to weed out fake PAN. He then apprised the court of the cases where people are filing their income tax returns by entering zeroes and ones, the same being accepted and refunds processed. He further argued that if the purpose was to eliminate fake PAN, then the linking need not be perpetual and data should be deleted after achieving the purpose, unlike in the present case where data is kept perpetually.
Moving on to his next argument on the pre-legislation actions, he submitted that delegated legislation cannot be ratified by a subsequent legislation when it has resulted in violation of fundamental rights. He said that when it is necessary to encroach upon the fundamental rights of the individuals, a legislation is needed and the same cannot be done via delegated powers.
He then took the court through the interim orders passed in the case. He pointed out that production of Aadhaar was mandatory for entrance exams like NEET and other CBSE exams which was in clear violation of the Supreme Court’s orders. He submitted that despite the orders in place, they were not being followed, this being a clear case of Contempt of Court.
Answering the point on making Aadhaar for NEET, Attorney General stated that it had not given authority to CBSE to make Aadhaar mandatory for exams. He further argued that the interim orders of the apex court would apply only to pre-Act actions and not to the actions undertaken after the Act came into force.
Mr. Datar made his final submission on the deletion of data and urged the court to consider the possibility of guidelines for deletion of data and for opting out of Aadhaar.
The petitioners then pressed for interim relief regarding the March 31st deadline. Justice Chandrachud observed that interim relief had to be considered at the earliest and extension of dates could not be left for the last moment as it would result in uncertainty for the financial institutions.
Senior Advocate P. Chidambaram commenced his arguments on the issue of Money Bill.
He began by questioning how could a legislation bypass the scrutiny of the Upper House by terming it as a money bill. He then went on to read Article 107 of the Constitution pertaining to introduction and passage of bills. He further read Article 117 relating to the provisions on financial bill, explaining when can a bill be termed financial and the procedure to be followed in such circumstances.
Coming to Article 110, he stated that money bill is a subset of financial bill which is a subset of bill. He further distinguished between a money bill and a financial bill. He elaborated that money bill can only be introduced in the Lok Sabha and Rajya Sabha only has recommendatory power and no legislative power. He stated that in such a case, these provisions relating to money bill should be construed very narrowly and strictly in order to ensure that nothing escapes in the guise of money bill.
Further, pointing out the substantive difference between Ar. 117 and 110 -money bill and financial bill, he stated that the use of word ‘only’ was the most important. He said that in case of even a small intrusion, the word ‘only’ gets diluted. He gave several examples on the interpretation of the word, citing Articles 74(2), 163(2), 163(3) and 363.
On the point of finality of decisions, Mr. Chidambaram discussed Article 103(1) and stated that even though the provision stated that the decision of the President would be final, a cumulative reading with section makes it clear that it is the decision of Election Commission, which was effectively taken into consideration. He said that the same interpretation could be applied to Article 110(3) as well.
Lastly, the court passed an interim order in the matter, allowing the applicants to produce any alternative means of identification apart from Aadhaar for NEET, CBSE and other All-India entrance examinations, thereby eliminating the mandatory requirement of Aadhaar.
The hearing will continue on Tuesday, 13th March, 2018.