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Above: A woman shows her Aadhaar card after casting her vote/Photo: UNI

In his final week as chief justice, Dipak Misra presides over a flurry of constitutionally important judgments which can have a profound impact on the country and its citizens

Reality Check

Aadhaar means unique and it is better to be unique than being best: Supreme Court

~By Neeraj Mishra

After all the waiting and high expectations, the Supreme Court’s verdict on Aadhaar was along expected lines. This had been indicated by the Court over the last few years as it dealt with nearly two dozen cases focusing on the various aspects of Aadhaar.

The Supreme Court’s five-judge constitution bench headed by Chief Justice Dipak Misra said Aadhaar was constitutionally valid. Others on the bench included Justice AK Sikri, who wrote the judgment for himself, the CJI and Justice AM Khanwilkar; Justice A Bhushan; and Justice DY Chandrachud, who wrote the dissenting judgment.

From right to privacy and liberty to its impact on income tax, banking, schooling, social welfare schemes and its very passage as a Money Bill, everything about the Unique Identification Number project had been challenged. Could the Supreme Court, in its final call, derail a multi-billion-dollar project involving more than 1.1 billion people at the altar of privacy rights guaranteed under Articles 21 or 14 or 19(1)(d)?

Judgment Days

The Court answered the question of the constitutionality of Aadhaar and its uniqueness quite emphatically in a 4:1 judgment with provisos it thought necessary. So now, Aadhaar is mandatory (under the Aadhaar Act) but not so necessary for some services, absolutely out of the reach of private companies and schools, but still is a volition of an individual. It is Justice Chandrachud’s dissenting judgment which sums it up unambiguously: “…since you cannot now live in India without Aadhaar.”

At various stages of the hearing, including the original petition challenging the validity of Aadhaar—Justice KS Puttaswamy (retd) and Anr vs Union Of India And Ors—and subsequent ones, the Court had made it clear what stand it would take. For instance, in 2013, it had orally observed that Aadhaar cannot be made mandatory for availing of welfare schemes. In early 2015, it allowed the use of Aadhaar for MGNREGA and later that year, for subsidies like LPG. This opened the floodgates for the government, which tried to make it compulsory for everything.

Meanwhile, the centre also declared that Aadhaar would be mandatory for opening new bank accounts and for transactions above Rs 50,000 by December 31, 2017, failing which these accounts would be deemed invalid. A five-judge bench on December 15, 2017, agreed to the government’s decision to extend the deadline for linking “everything”, including mobile phones and bank accounts, to Aadhaar till March 31, 2018. Pesky mobile phone companies and banks kept sending ominous messages with each new deadline. Though one is not required to submit Aadhaar details to a bank now, it will still have to be linked to PAN.

Judgment Days

Meanwhile, nearly all banks have acquired fingerprints, iris scans and access to an individual’s Aadhaar data base. If you have been to a bank recently, you would have been required to submit your Aadhaar number and thumb impression, otherwise your KYC would be noted as incomplete and transactions stopped. Mobile companies have already collected mountains of data which they may have freely traded with other private enterprises. Even if they have not, they have it, and except for Justice Chandrachud, no one seems particularly concerned about its deletion.

Shankar Aiyar, who wrote Aadhaar –A Biometric History of India’s 12-Digit Revolution, says: “Customers can and should now actually ask mobile phone companies and banks to delete their personal data if they want to.” Private companies are aware of the impending crisis, but most have said that they “will wait for government directions even though they respect the Supreme Court”.

In the coming days, the government may approach the Supreme Court in a curative petition seeking explanations on several counts. It will also have to decide what will happen to its Digital India project if something as rudimentary as a POS machine made mandatory at ration shops has now become redundant. All banks and mobile companies will now have to go back to their old ways and collect KYCs as it is imperative for the government to withdraw the link to the Aadhaar database, granted under the Act to select public and private enterprises. Beneficiaries of the Jan Dhan Yojana will have to go back to slip withdrawals for their Rs 500 pension.

It has already been estimated by private companies and banks that the KYC process which had become simple because they could just access the UIDAI database through scanners will now become at least seven times costlier. UIDAI data access costs them Rs 15 per person. More than the expenditure, it was the convenience of Aadhaar verification for companies like Paytm and mutual fund managers that will suffer. The shortening of the KYC process had brought an ever-expanding base of customers to them. This could now turn into a trickle.

“Without Aadhaar being allowed to be used by private financial companies and its linking to mobile phones, it will just become a social tool,” said a CEO of a large financial company. He now ex­pects the government to bring in some sort of executive order to bypass this judgment. And it may happen soon enough because the basic point of Aadhaar being a constitutional reality has been accepted.

However, Justice Chandrachud, the lone dissenting judge on the five-judge bench, had some very harsh observations to make and not least among them was the one on its passage as a Money Bill. “It amounts to a fraud on the Constitution,” he said, clearly laying down that Article 110 of the Constitution has a wider import than the mere whims of a Speaker.

Jairam Ramesh had, in his petition against its passage as a Money Bill, argued along similar lines. His petition said: “A money bill consists of seven provisions provided in Article 110(1) of the Constitution, including regulation of tax and borrowing by the government, custody of consolidated funds of India and payments and withdrawals from the fund, appropriation of money out of the consolidated fund, declaring the expenditure charged on the consolidated fund and its increase and receipt of money on account of the consolidated fund.

“Aadhaar Act did not comprise solely of management of funds of the Consolidated Fund of India, instead it was only a part of the Bill that included amongst other things, the roles and responsibilities of enrolment agencies, requesting entities, and authentication agencies, and the information to be given to users.”

Aiyar said that bypassing the Rajya Sabha through a Money Bill in the Lok Sabha is irregular and undesirable, but more important is the interpretation of Article 110. “Was it the intention of the founding fathers that unbridled power be invested in a single individual—in this case, the Speaker—for such delicate matters?” This is an issue which is certain to come up soon in the apex court.

There are two other issues that Justice Chandrachud has flagged. The threat to privacy was on top of his mind as he noted that mobile phones have become an important feature of life and their seeding with Aadhaar posed a grave threat to privacy, liberty and autonomy. He is the only judge in the bench who suggested deletion of consumers’ Aadhaar data by mobile service providers.

He also did not mince words when he said that political parties may mine the data from private phone companies to profile citizens and elicit their political views and then (mis) use it to their advantage. He said that there appears no institutional responsibility of the UIDAI to protect the data of citizens in absence of a regulatory mechanism. If Aadhaar is seeded with every database and access is allowed to private players, then there are no safety guarantees.

The government has so far proceeded single-mindedly with its plans regarding UIDAI. It brought in the Aadhaar Act in 2016 despite the 2010 Bill still pending in the Lok Sabha. It showed great haste during the pendency of the suit in interlinking every possible financial and social institution it thought necessary with the Aadhaar database.

Eleven years after it was conceived, Aadhaar is a reality that is here to stay.

Path Cleared for Ayodhya Hearing

Ram Janmabhoomi–Babri Masjid title suit proceedings back on track

Paving the way for resumption of proceedings in the long-pending Ram Janmabhoomi–Babri Masjid title suit, a three-judge bench of the Supreme Court refused to refer its 1994 Ismail Faruqui verdict to a larger bench for further clarification. Hearing in the title suit will now resume on October 29.

The Ismail Faruqui verdict had been challenged by a bunch of Muslim outfits during proceedings in the title suit. The petitioners had claimed that the top court’s observation in 1994—that mosques are not integral to Islam and thus not essential for offering namaz—was too “sweeping” and could influence the verdict in the land dispute.

On September 27, by a 2:1 majority verdict, the bench of Chief Justice Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer held that observations in Ismail Faruqui were solely on the issue of acquisition of land by the government and will not, in any way, impact the outcome of the Ayodhya land dispute. Justice Nazeer, who authored the dissenting opinion, however, held that whether a mosque is integral to Islam is a matter that requires the consideration of a Constitution bench, an opinion that Chief Justice Misra and Justice Bhushan differed with.

The majority judgment pointed out that the contentious sentence in Paragraph 82 of Ismail Faruqui—“mosque is not essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open”—is followed by the averment “its (a mosque’s) acquisition is not prohibited by the provisions in the Constitution of India”. Justice Bhushan, who authored the majority verdict, said the averment that qualified the controversial observation made it clear that the remark “was confined to the question of immunity from acquisition of a mosque”.

For the uninitiated, it is pertinent to put Ismail Faruqui in perspective. Months after the demolition of the Babri Masjid in Ayodhya in December 1992 by Hindu radicals supported by the RSS-BJP combine, the Congress-led central government had enacted the Acquisition of Certain Area at Ayodhya Act, 1993. A year later, in October 1994, a five-judge bench of the top court had, in M Ismail Faruqui vs Union of India, upheld the validity of the Act, vesting jurisdiction over the disputed land in Ayodhya in the centre.

The above-quoted remark in Paragraph 82 of Ismail Faruqui gave rise to a new legal conundrum that appeared to establish a critical legal precedent which could determine which way the judgment in the Ram Janmabhoomi–Babri Masjid title suit could go. The said observation—that the mosque is not integral to Islam—has been repeatedly used by the Hindu Right to suggest that while the birthplace of Lord Ram cannot be shifted to another site, a mosque with no particular religious significance for Muslims can be shifted as doing so will “not affect the right to practise religion by offering namaz in other mosques”.

Muslim groups who are party to the title suit can derive solace from the explicit assertion of the Court that observations in Ismail Faruqui will not affect the outcome of the land dispute, which in turn will be decided on its own merit. The stage is now set for proceedings in the appeal in the communally sensitive title suit to commence.

Open-Door Policy

The apex court brings the curtain down on a three-decade-old legal battle and allows women of all ages to worship at the famed Sabarimala shrine in Kerala

The Supreme Court on September 28 upheld the right of women of all ages to offer prayers at the hilltop temple of Lord Ayyappa in Sabarimala in Kerala. A five-judge Constitution bench headed by Chief Justice Dipak Misra, in its 4:1 verdict, said that banning the entry of women into the shrine amounted to gender discrimination and violated the rights of Hindu wo­men. Hitherto, the doors of the temples were shut to women of menstruating age.

The verdict brings the curtain down on several legal battles that lasted nearly three decades. Four verdicts were written, one by Chief Justice Dipak Misra and Justice AM Khanwilkar, and one each by Justices DY Chandrachud, Rohinton Fali Nariman and Indu Malhotra, respectively.

Justice Malhotra’s dissenting verdict said that issues which have deep religious connotation should not be tinkered with to maintain the secular atmosphere in the country. But the majority verdict held that physiological and biological factors can’t be given legitimacy if they don’t pass the muster of conditionality, meaning women and men are equal. “Women are not lesser or inferior to men. Patriarchy of religion cannot be permitted to trump over faith,” the Court said and added that devotees of Lord Ayyappa don’t constitute a separate religious denomination.

Kerala’s CPI(M)-led regime has welcomed the verdict though in the past, governments  in the state have frequently changed their stance on the contentious issue. The minister in charge of temple administration, K Surendran, said that he would ask the Travancore Devaswom Board, which manages the sabarimala temple, to abide by the verdict and make all arrangements for women devotees.

But the priests at the temple were disappointed with the verdict. Social activist Rahul Easwar, whose grandfather was a head priest at the temple, said that he will be filing a review petition in the Supreme Court. Addressing a press conference, he said: ”Our core argument is that the deity is a celibate. The deity is the core of the temple. The deity has a right and a soul, and if you are going to destabilise the soul, it will affect every temple. We will move the Court in the first week of October.”

The ban was first challenged in 1991  but the Kerala High Court had upheld it. In 2006, the Indian Young Lawyers Association filed a petition in the Supreme Court opposing the practice and sought the lifting of the ban. The petition claimed that the custom violated the right to equality granted by the constitution to all the citizens of India and that it was discrimination based on the gender of the citizens. The Supreme Court then issued notices to all parties and the matter was referred to a three-judge bench. In 2007, the Kerala government, then led by the LDF, told the Court that it favoured the entry of all women into the temple. However, that was overturned by the Congress-led United Democratic Front government later. In October 2017, the matter was referred to a Constitution bench. In July 2018, just before reserving the verdict in the case, the apex court, after an eight-day hearing observed that everyone can enter Sabarimala regardless of sex. “A woman’s right to pray was not dependent on any law but is a Constitutional right,” the bench had observed, and “what applies to a man applies to a woman as well”.

Adultery: Crime No More

Husband is not the master of woman, asserts SC bench

In September 27, a five-judge Constitution bench headed by CJI Dipak Misra and comprising Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra struck down a 158-year-old law that held adultery to be a punishable offence. The bench called it unconstitutional, with CJI Misra noting that “it’s time to say that the husband is not the master of woman”.

The bench said that unequal treatment of women invites the wrath of the Constitution. “Mere adultery can’t be a criminal offence. It is a matter of privacy. Husband is not the master of wife. Women should be treated with equality along with men,” Chief Justice Misra said on behalf of Justice Khanwilkar too. Most countries have abolished adultery as a crime. “It shouldn’t be a criminal offence, other people are also involved in it,” he said.

He said a woman cannot be asked to consider the way society desires her to behave. Justice Nariman, reading out his judgment, said: “Women can’t be treated as chattel”, while Justice Malhotra, the lone woman judge on the bench, said Section 497 was a clear violation of the fundamental rights granted in the Constitution and there was no justification for continuation of the provision.

Justice Chandrachud in a concurring but separate judgment said society had two sets of morality for sexual behaviour—one for women and another for men. “Society treating women as embodiments of virtue leads to things like honour killings,” he said, adding that the archaic law was against dignity, liberty and sexual autonomy guaranteed under the Constitution. The bench was unanimous that Section 497 was an arbitrary, archaic law, violative of the rights to equality and equal opportunity of women.

Section 497 says: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.” Adultery was punishable by a maximum of five years in jail or fine or both. The Court, which held adultery as a relic of the past, said autonomy is intrinsic to dignified human existence and Section 497 obstructed women from making choices.

It was on October 10 last year that an NRI from Kerala, Joseph Shine, filed a petition challenging the constitutional validity of Section 497. The matter was referred to a Constitution bench in January this year. The Union government had favoured retention of this law. It had said: “It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its Constitution powers.” Hearings in this case began on August 1.

With this verdict, the Supreme Court has overturned three of its own judgments where it was held that this law was constitutionally valid. Incidentally, the 1985 judgment, upholding Section 497, was authored by Justice YV Chandrachud, the father of Justice DY Chandrachud, in Sowmithri Vishnu vs. Union of India.

Towards an Open Court

Openness is like sunlight, the best disinfectant, says the apex court while allowing live streaming of court proceedings

In an unprecedented boost for transparency in the functioning of the judiciary, the Supreme Court has allowed live streaming of court proceedings in cases of constitutional and national importance.

The significant verdict by a three-judge bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud has laid down a slew of guidelines to be followed to ensure that while ordinary citizens get virtual access to the courtroom, the privacy of litigants, particularly in sensitive matters, is not compromised.

The judgment came in response to a bunch of petitions filed by senior advocate Indira Jaising, law intern Swapnil Tripathi and others. The verdict marked the end of a rare case where the Court, the petitioners and the government were all of the same opinion—succinctly summed up by Justice Chandrachud who in his concurring verdict said live streaming will bring in “openness” which, like “sunlight is the best disinfectant”.

As per the broad guidelines laid out by the Court, “only a specified category of cases or cases of constitutional and national importance being argued for final hearing before the Constitution Bench will be live streamed as a pilot project” and advance permission of the concerned Court will have to be sought in writing for the purpose.

The apex court has also said that prior consent of all the parties to the concerned proceedings will have to be sought for live streaming and in the absence of unanimity, “the concerned Court can take the appropriate decision”. Further, the Court said that “there must be a reasonable time-delay (say ten minutes) between the live court proceedings and the broadcast, in order to ensure that any information which ought not to be shown, as directed by the Court, can be edited from being broadcast”.

The three-judge bench further ruled that until a full-fledged module and mechanism for live streaming are evolved, the possibility of implementation of Phase-I of live streaming can be ex­plo­red in designated areas within the confines of the Supreme Court via “intranet”.

Cast Aside

Let backward classes move forward with other citizens

In a verdict that may have far-reaching political and social ramifications in future elections, the Supreme Court has ruled that states no longer need to collect quantifiable data on the backwardness of Scheduled Castes and Scheduled Tribes while granting a quota in promotions.

The states will, however, need to back the case for reservations with data to show inadequate representation of the respective SC/ST group in the cadres, while excluding the “creamy layer” of these communities from taking advantage of the quota.

While declining to refer to a larger bench its M Nagaraj & Others vs Union of India verdict of 2006, a five-judge Constitution bench headed by CJI Dipak Misra ruled that the “object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis”. The verdict added that meeting this goal “will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were”.

The verdict of the five-judge bench waters down the Nagaraj judgment (also delivered by a Constitution bench of then CJI YK Sabharwal and Justices KG Balakrishnan, SH Kapadia, CK Thakker and PK Balasubramanyan) which had said that if the state “wish(ed) to exercise their discretion and make provision (for reservation in promotions for SCs/STs), the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335”.

While the present Constitution bench refused to refer the Nagaraj verdict to a larger bench, it held the ruling for determining quantifiable data on backwardness was “bad in law” and not in consonance with the landmark 1992 Indra Sawhney verdict of the apex court.

The bench, also comprising Justices Kurian Joseph, RF Nariman (he wrote the order), SK Kaul and Indu Malhotra, said: “The conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the nine-judge Bench in Indra Sawhney is held to be invalid to this extent.”

During arguments in the case, Attorney General KK Venugopal, appearing for the centre, had favoured reconsideration of the Nagaraj verdict and submitted that the proportion of SCs and STs to the population of India should be taken as the test for determining whether they are adequately represented in promotional posts. These contentions were, however, rejected by the Court.

The “creamy layer” exposition has so far been largely applied while granting (or denying) reservation to members of Other Backward Classes (OBCs). That the Supreme Court ruling will now effectively make it applicable to SCs and STs too is certain to trigger unrest among political leaders of the community who are already agitated over the top court’s recent verdict that diluted the SC/ST (Prevention of Atrocities) Act.

Union ministers and leaders from the SC community Ramdas Athawale and Ram Vilas Paswan, who until recently were giving sleepless nights to Prime Minister Narendra Modi with their criticism of the dilution of the Atrocities Act, have now found a new tool to keep the pressure going on the centre.

The leaders have already expressed their dissatisfaction with the verdict and could soon start blaming the Modi regime for not adequately defending the interests of the SC/ST community in the top court.

Criminal Lapses

Onus on lawmakers to check criminalisation within own tribe

For hundreds of candidates hoping to fight the impending assembly elections in four states and next year’s Lok Sabha polls, the Supreme Court’s verdict on barring candidates with criminal records must have brought relief.

In a judgment that was eagerly awaited, a Constitution bench headed by CJI Dipak Misra and comprising Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra ruled that it was not going to issue an order to disqualify candidates from contesting elections simply because a charge sheet had been filed against them in criminal offences. If convicted, these politicians face a six-year ban from contesting elections.

While exhorting Parliament to step in to rein in the increasing criminalisation of politics, the Court issued several directives to keep a check on the trend. It said:

  • All candidates seeking to contest elections must declare their past criminal charges/records
  • Political parties must display full details of the criminal charges faced by their candidates on their websites and give wide publicity in the electronic and print media about pending cases against them
  • Parliament must make laws to ensure candidates with criminal records don’t enter public life or take part in lawmaking
  • The Election Commission must ensure that candidates clearly specify in bold letters the details of their pending cases or criminal past at the time of filing nominations

The judgment came on a batch of petitions filed by BJP leader and advocate Ashwini Kumar Upadhyay, former Chief Election Commissioner JM Lyngdoh and an NGO, Public Interest Foundation. The petitioners essentially sought guidelines to deal with the menace of criminalisation of politics and demanded that those charged with serious offences be debarred from contesting elections. They also demanded that the trial of such persons be concluded within six months in a time-bound manner.

The question before the top court in the current case was whether such disqualification should run from the date of framing the charge by the court instead of the conclusion of the trial. The matter was initially referred to a three-judge bench and then to a five-judge Constitution bench. The bench commenced hearing on August 9 and concluded on August 28.

The petition argued that current provisions of the Representation of the People Act, 1951, was not enough for convicted legislators and that the ban should be for more than six years. “Indian democracy has seen a steady increase in the level of criminalization creeping into the polity. This tends to disrupt constitutional ethos, strikes at the root of democratic form of government and makes citizens suffer,” the Court observed while putting the onus on lawmakers to check the growing menace of criminalisation within their own tribe.

The case cannot be overstated. In 2014, the Association of Democratic Rights (ADR) along with National Election Watch analysed the affidavits of 542 of 543 winners in the 2014 Lok Sabha elections and found that a candidate with a criminal background was almost twice as likely to win than one without a criminal background. The winning chances of the former were 13 percent, and of the latter five percent. Another ADR study found that 186 MPs out of 543 of the current Lok Sabha were facing criminal charges. That is, one in every three MPs is charged with criminal cases. The BJP has 282 MPs, and out of these, 98 have criminal cases against them. According to data submitted by the centre to the apex court, no more than six percent of criminal cases against MPs and MLAs ended in conviction. Of 3,884 cases from 2014 till now, judgments of guilt were pronounced in 38 and 560 were acquitted, the centre informed the Supreme Court in an affidavit as recently as September 11, 2018.

Though the Court has told the political class to take corrective measures themselves, the question is: Will they?

Of Lawyers and Lawmakers

Legislators are not full-time salaried employees, says SC

MPs and MLAs cannot be barred from practising law as they are not “full-time salaried employees” and advocates who become lawmakers can continue to practise as the relevant rules place no restriction, the Supreme Court said.

The judgment was delivered by a bench of CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud in a petition filed by advocate and BJP spokesperson Ashwini Kumar Upadhyay. In his petition, he had sought that legislators be barred from practising as advocates (for the period during which they are MPs or MLAs), in the spirit of Part-VI of the Bar Council of India (BCI) Rules. Rule 49 deals with advocates becoming full-time salaried employees of any person, government, firm, corporation or concern. The petitioner stressed that a legislator is a full-time salaried employee of the government and hence cannot be allowed to practise as an advocate.

Following Upadhyay’s submission, the BCI issued a notice to MPs and  MLAs/MLCs who continue to practise law. But the government, represented by Attorney General KK Venugopal, opposed the petition, contending that an MP is an elected representative and not a full-time employee of the government, and hence cannot be stopped from practising law.

“They are doing a public service in their capacity as an MP. You can’t stop a person from practising a profession. It is a fundamental right to carry on a profession,” Venugopal had argued.

The apex court ruled that legislators “cannot be characterised as full time salaried employees as such, much less of the specified entities. For there is no relationship of employer and employee”.

The two Houses of Parliament currently have nearly 40 stalwart advocates such as Kapil Sibal, P Chidambaram, Abhishek Manu Singhvi, Pinaki Misra and Meenakshi Lekhi, while many more practising lawyers are MLAs in state assemblies.

—With inputs from India Legal Bureau

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