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The Supreme Court bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud, and Ashok Bhushan, hearing clubbed petitions against Aadhaar linkages, on Wednesday (May 9), heard submissions by senior advocates and then reserved its verdict.

Today senior advocate Gopal Subramaniam said that dignity is to be maintained as per the preamble. He mentions the NALSA judgment on dignity.

Justice Sikri said: “We are not denying all this, but there should not be any inclusion as well.”

Subramaniam said: “Why are we given subsidies? Even if you need the already existing identities, what is the point of this identity? People have ration cards, but cannot avail the benefits of the scheme to due lack of authentication. People are not getting the benefits of the schemes due to failure in authentication.”

He said the act does not create any instrumentality under section 7. It only creates a mode of identification. He said that the government is for the people, by the people but not over the people.

Justice Sikri said: “Even census is calculated for the benefits of schemes, what is the problem in this?”

Subramaniam said: “The census is collected under the census act and the data is highly protected. This data is used at the centre and the states. In Puttuswamy case, the court ensured vertical as well as horizontal protection. However, in this case, where is the vertical protection in the first place?”

Justice Chandrachud said: “Section 7 is not a mandate. It is an enabling provision. It enables the central government to mandate any provisions.”

The counsel said: “What are we doing by this process of identification? We are harming the dignity of an individual. Society has an interest; state has to have interest in the interest of the society. Not harm the dignity.

“Ration card is an identification for meals, PAN card is an identification for income tax and so on,” he said. He quotes yesterday’s judgment and submits that it is the duty of the court to protect the fundamental rights.

Senior counsel Arvind Datar said Aadhaar Act is not a money bill. According to new notification, any person eligible to enroll for Aadhaar must produce the same later. Now every individual is eligible for Aadhaar. Indirectly, they’ve made Aadhaar compulsory.

In order to determine the question whether a bill is a money bill or not, the speaker has the final say, he said.

Senior counsel P Chidambaram said: “I don’t understand why is there a need to tamper with the language of the constitution. No problems exist. AG’s reading of the word “only” in Article 110(g) is erroneous. There is no need to tamper the language. Section 57 travels beyond Article 110 of the Constitution. Clause (g) of 110 (1) must be read very restrictively. The provision has to be incidental to (a) to (f) to come under (g). Clause (g) is not a substantive provision.”

Chidambaram talked about severability: “We don’t have a provision for severability. Severability applies when the legislation is balanced. He refers to a judgment dealing with the doctrine of severability. The bill should have undergone the scrutiny  of the Rajya Sabha and the president.

“The speaker is providing some provisions as money bill and some as not; in such a case, the proper procedure is not being followed and such a bill should be declared unconstitutional as a whole.”

Now, on doctrine of pith and substance, he refers to a Privy Council judgment. In case of a money bill, Rajya Sabha does not have a say. However, if it is a non money bill, Rajya Sabha will say whatever it has to.

He requested the bench not to allow this act under article 110; it shall be a mockery to article 110.

Senior counsel KV Vishwanathan said that this act is erroneous. Second error is in the theory of balancing; you don’t balance on the bundle of individual’s rights. Next error is in section 59. No control on the UIDAI how will it execute the mechanism.

Vishwanathan stated five scopes of an individual’s rights which the government is to protect and not violate. Section 7 does not support it. The basic pinning of this act is not Aadhaar but the mere possession of Aadhaar. The entire act is mainly for authentication.

The Supreme Court reserved its order in Aadhaar matter.

—India Legal Bureau

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