Landmark dissent

The history of the Indian Supreme Court is replete with instances of dissenting opinions later becoming the law of the land. One hopes Justice Chandrachud’s dissent in the Aadhaar case sees that transformation sooner rather than later.

Justice D.Y. Chandrachud arriving for Chief Justice Dipak Misra’s farewell function on October 1.

The Supreme Court has pronounced its final verdict on the six-year-long litigation challenging the Aadhaar project, the Government of India’s constitutionally courageous effort to build and operate a database of sensitive demographic and biometric information of all Indian residents. Twenty-six judges of the Supreme Court heard the case over that period. The case posed several questions that tested the court’s, and indeed the Indian public’s, understanding of the essential values of the Constitution and the Fundamental Rights. The 1,448-page-long 4:1 majority verdict partially upheld the Aadhaar project. Justice Dhananjaya Chandrachud delivered the lone dissenting opinion, striking down the entire project and the Aadhaar Act as unconstitutional. By all measures, for Aadhaar it was a close shave.

Justice Chandrachud wrote the lead opinion in the landmark nine-judge bench judgment of the Supreme Court that unanimously upheld the status of the right to privacy as a fundamental right. That judgment not only answered the seemingly simple yes/no question before it but in the process also caused our fundamental rights jurisprudence to take a quantum leap as it considered and exposited on ideas such as dignity, autonomy, self-determination and, importantly, the interrelationship of fundamental rights.

It furthered the project that began with the 11-judge bench judgment on bank nationalisation in 1969-70 and was followed through in the seven-judge and nine-judge bench decisions in Maneka Gandhi (1978) and IR Coelho (2007) respectively. The privacy judgment summarily rejected the Government of India’s attempts to rely on pre- Maneka Gandhi readings of India’s charter of Fundamental Rights—in what was India’s Make India Great Again moment (taking its cue from Donald Trump’s “Make America Great Again” campaign that looks to turn the clock back on the progress made on the civil and political rights front).

The question of the existence of the fundamental right to privacy was a rather soft one for the court. That was but one of the more than two dozen questions that required a decision from the court through the Aadhaar litigation that began in 2012 and ended, for the moment, in September 2018. What it was going to decide on the question of the constitutionality of Aadhaar was the real deal , many thought.

The author of the lead opinion in the “right to privacy” case found himself in the minority as he delivered what is expected to be one of the more celebrated judicial dissents in the history of the Supreme Court. He accepted the petitioners’ view on almost every issue and struck down both the Aadhaar project and the Aadhaar Act as unconstitutional. Even when he was less than halfway through reading out the series of 23 conclusions of his judgment in open court, the momentousness of the dissent had become clear. No other judicial pronouncement in recent memory has come down as heavily on the actions of the government as this one did. If the “right to privacy” judgment was about fundamental rights, Justice Chandrachud’s dissenting judgment in this case was about the limits of state power.

Fraud on the Constitution

One of the issues argued in the case was that when the Aadhaar Act was passed in 2016 as a “Money Bill” it should not have been passed so. A piece of legislation introduced in the Lok Sabha certified as a Money Bill effectively nullifies the role of the Rajya Sabha, called the “Council of the States”, a part of the bicameral legislature crucial to the federal character of Indian democracy. The Rajya Sabha cannot vote on a Money Bill but can only recommend amendments that are not binding on the Lok Sabha. Article 110 of the Constitution defines the scope of a Money Bill. It lays down the criteria, all of which relate to the Consolidated Fund of India, revenue and taxation, which every provision of the Bill must adhere to in order to be certified as a Money Bill. Article 110 uses the word “only” to limit the ambit of the Bill; the text of the Article states at the outset that “ a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters ”. Article 110 also lays down that on the question of whether a Bill is properly certifiable as a Money Bill, the Lok Sabha Speaker’s decision is final.

Two previous decisions of the Supreme Court had held that the finality of a Bill’s certification as a Money Bill was not open to question in any court, including the Supreme Court. For any government that is short of numbers in the Rajya Sabha, the Money Bill route is a godsend. These decisions, however, ran contrary to the weight of at least two Constitution Bench decisions that had held that the finality of the Speaker’s decision meant only immunity from appeal and not immunity from judicial review for non-compliance with constitutional provisions.

The petitioners in the Aadhaar case contended that the Speaker’s certification of the Aadhaar Act as a Money Bill was illegal and that the Act, having not been duly passed, was stillborn, a nullity, and therefore had no force of law. The government, on the other hand, argued that the Supreme Court could not review the Speaker’s decisions and that the Aadhaar Act, dealing with targeted delivery of subsidies and benefits flowing out of the Consolidated Fund of India, was correctly certified in any event.

In his opinion, Justice Chandrachud examined several precedents on judicial review and finality clauses in the Constitution, the role of the Rajya Sabha in a federal Constitution such as India’s, the scope of the provision in Article 110 and the significance of the term “only” occurring therein, and the various provisions of the Aadhaar Act, including the sole provision in Section 7 that had any connection at all to the Consolidated Fund of India. He concluded that the certification of the Aadhaar Act as a Money Bill was completely illegal and unconstitutional and struck down the Act for violation of Article 110. He said: “The Rajya Sabha has an important role in the making of laws. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution …. That would constitute a subterfuge, something which a constitutional court cannot countenance.”

Phrases like “fraud” and “subterfuge” are seldom used in relation to government action by a usually restrained Supreme Court, in deference to the status of the executive and the legislature as coequal organs of the state. However, the Supreme Court, acting in the capacity of the guardian of the Constitution, must assert itself to limit the excesses of the other two organs and to call a spade a spade when it ought to. Justice Chandrachud’s judgment does exactly that, even as the majority opinion of Justice A.K. Sikri invents principles and doctrines to squeeze the Aadhaar Act within the confines of Article 110.

Another issue on which Justice Chandrachud’s opinion was in sharp contrast to the majority opinion was on the correctness of the government’s action of making Aadhaar mandatory for several schemes while the interim orders of the Supreme Court were still in operation. The majority held that the government’s conduct was improper and unfair as it did not seek a variation order from the court but stopped short of striking down those notifications.

Justice Chandrachud’s opinion went further: He struck down those notifications and held that the Union government’s conduct violated the rule of law and its own constitutional duty. His judgment stated:

“ Institutions of governance are bound by a sense of constitutional morality which requires them to abide by judicial orders. What seems to emerge from the course of action which has been followed in the present case by government is a perception that judicial directions can be ignored on a supposed construction of the statute…. If we were not to enforce a punctilious compliance with our own directions by government, that would ring a death knell of the institutional position of the Supreme Court.”

Only a partial dissent

Although Justice Chandrachud’s opinion adopted a contrasting view on several other issues such as the privacy of biometric information, the evidentiary value and effect on the constitutionality of studies on exclusion that the Aadhaar scheme was causing, the test and the standard of legislation infringing the privacy of the individual, it must be said that his decision was not a “dissent” in the strict sense of the word. It is not clear which of the opinions was penned first. While Justice Ashok Bhushan made it clear that he had had the benefit of having read Justice Sikri’s opinion, it did not appear that the majority opinion had been read by Justice Chandrachud or vice versa because there is no expression of dissent or disagreement with each other’s opinion in the judments. Justice Chandrachud himself indicated that it was only a partial dissent as he began to pronounce his judgment in open court. There were several issues on which Justice Chandrachud and the majority opinion agreed.

First , there was a broad agreement on the principle that any decision of the Speaker, although final, was not immune from judicial review. Second , both the opinions agreed that Section 57 of the Aadhaar Act, to the extent that it allowed private companies and service providers to use Aadhaar authentication, was unconstitutional because it allowed commercial exploitation of personal information. Third , both agreed that the Rules of the Prevention of Money Laundering Act that mandated Aadhaar-linking for all existing and new bank accounts were unconstitutional because this amounted to a disproportionate invasion of privacy. Fourth , both agreed that the telecom circular that mandated SIM-Aadhaar linking had no authority of law and was a disproportionate and unconstitutional invasion of privacy.

The lone dissent, however, went further and directed that the government should direct deletion of all Aadhaar data by telecom service providers. There has been some discussion on whether this direction, not endorsed by the majority of judges, is binding. It is an established principle in reading separate judicial opinions that on the point where there is concurrence on the reasoning or conclusions, the directions given even by one of the opinions must be taken to have the endorsement of the others, which makes Justice Chandrachud’s directions binding. This makes this “dissenting” opinion not merely of academic importance as some suggest.

Technology & Constitutionalism

However, the lasting impact that Justice Chandrachud’s opinion will have is the judicial acknowledgement of the constitutional problems that arise in the context of a rapidly digitalising governance, in its own words: “[I]n understanding the interface between governance, technology and freedom, this case will set the course for the future….Our path will define our commitment to limited government. Technology confronts the future of freedom itself.” Elsewhere, it spoke about the dialogue between technology and power; and the relationship between the citizen and the state. This was a theme that senior counsel for the petitioners painstakingly argued, and it was refreshing to see that the opinion had not only absorbed it and done justice to it but had travelled further beyond.

From Virginia Eubanks’ work titled Automating Inequality , which demonstrates how technological solutions are often discriminatory against those already vulnerable, to L. Viswanath’s piece in The Wire on the nature of biometrics and the implications of its use in Aadhaar, the dissenting opinion relied on several unconventional sources to examine some of the unfamiliar questions before the court. The dissenting opinion’s recognition that the rights and dignity of the individual and constitutional guarantees cannot be subjected to the algorithms, probability and vicissitudes of technology stood in sharp contrast to a broad idea of techno utopianism endorsed by the majority.

Intelligence of a future day

Chief Justice Charles Evan Hughes (1862-1948) of the United States Supreme Court once wrote that “ [A] dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day….”

The history of the Indian Supreme Court is replete with instances of dissenting opinions later becoming the law of the land. Justice Chandrachud certainly knows a thing or two about that. For, even within the Aadhaar litigation, his right to privacy judgment overruled the majority decisions in ADM Jabalpur (Emergency case, 1975) and in Kharak Singh (1962-63). The celebrated dissenting opinions of Justice H.R. Khanna and Justice Subbarao respectively in those cases now hold the field. One hopes that Justice Chandrachud’s dissent in the Aadhaar case sees that transformation sooner rather than later.

Prasanna S. is a Delhi-based advocate. He assisted the petitioners’ side in the Aadhaar case before the Supreme Court.