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Mainstream, VOL LVI No 45 New Delhi October 27, 2018

Aadhar Judgment: Triumph of Expediency over Principle

Sunday 28 October 2018

by Vijay Kumar

The majority judgment in the Aadhar case represents triumph of expediency, whereas the dissenting judgment delivered by Justice Chandrachud is extremely liberating and will go down in history as one of the most celebrated dissents.

The Aadhar and its mandatory insistence became an all-pervasive reality, particularly after its enactment in 2016. The stay granted by the Supreme Court by the Bench of Justice Chelameswar was intentionally flouted by the Modi Government with all the hubris and disdain at its command. The obnoxious practice of mandatory requirement of submitting identity for availing almost all the services under the sun was so common and ubiquitous that the majority judgment went by pragmatism and, in the process, ignored that the constitutional courts, particularly the Apex Court, is a forum of principle, and not a mere ‘problem-solver’, as described pejoratively as the problem-plumber, by Professor Upendra Baxi.

The ‘problem-solving’ role of the Court is secondary. Enunciation of the juridical principle is the first and foremost function of the constitutional court. Its decision must be seen to be not only just and fair but also principled. It is the declaration of the jurisprudential principle which sustains the credibility of the Court. No doubt, the Constitutional Courts, including the Supreme Court, have become the problem-solver, particularly after inaugurating and institutionalising public interest litigation. But the assertion of the principle through articulation of ‘public reason’, as conceptualised by John Rawls and entrenched in recent times by Prof Amartya Sen, must always remain the primary role and duty of the Court.

The sheer scale of ubiquity of requirement of Aadhar might have weighed heavily in the minds of the majority judges. The omnipresent reality of Aadhar exerted hydraulic pressure on the majority judgment, and they chose to be expedient by sacrificing the principle. The undue deference shown in the majority judgment to the ephemeral political majority of the day reminds one of one of the famous comments of Justice Oliver Holmes that “great cases, like hard cases, make bad law” and “great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate or immediate overwhelming interest which appeals to the feelings and distorts the judgment”, “these immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful”, and “before which even well-settled principles of law will bend”. (Northern Security Co. vs. United States—1903)

On the other hand, the dissenting judgment of Justice Chandrachud is grounded on sound juridical principle enunciated to further the constitutional morality. Justice Chandrachud referred to the unanimous judgment by the nine-judge Bench in the privacy case which had the effect of conclusively clinching the issue in favour of citizens.

The dissenting judgment rightly held that enactment of the Aadhar Act was a “fraud on the Constitution”, as the Rajya Sabha, being an integral part of the bicameral Parliament, was ignored by dubbing the Bill as a Money Bill. This was “subterfuge”, in the language of Justice Chandrachud, and failure to perceive the same on the part of the majority judgment constituted unmitigated disaster for the evolution of constitutionalism. The minority judgment of Justice Chandrachud articulated its fateful implications for parliamentary democracy by debasing the Rajya Sabha, one of the three constituents along with the Lok Sabha and President. Making the Rajya Sabha redundant, according to Justice Chandrachud, amounted to damaging the delicate balance of bicameralism, and thereby democratic structure. The introduction of the Bill as a Money Bill was calculated to bypass the Rajya Sabha and this cynical calculation subverted two basic features of the Constitution: first, Parliamentary Democracy, and second, Federalism. The Rajya Sabha has a dual role in the Indian Constitution. It is the Upper House of Parliament without which parliamentary democracy cannot be conceived at all. Apart from this, the Rajya Sabha is a basic fulcrum of Indian federalism and is called the forum of a State as it represents the State’s interests. The introduction of the Aadhar Bill as a Money Bill, therefore, has negated two basic features of the Indian Constitution.

Constitutionalism, in the last and ultimate analysis, means the taming the transient political majority of the day. The minority judgment of Justice Chandrachud has passed muster under this test and the majority judgment showing unjustifiable deference to the fleeting political majority and pervasive reality of Aadhar is disappointing in the extreme. In the process, the majority judgment failed to appreciate that declaration of sound principle alone can enhance the credibility and effectiveness of the country’s Apex Court. The majority judgment clearly ignored the seminal remark of the great American jurist, Alexander Bickel, that the “Court has neither the power of sword nor the purse; but it has only the power of judgment” implying thereby that the quality of the judgment alone can secure and sustain the reputation and credibility of the highest Constitutional Court.

The dissenting judgment delivered by Justice Chandrachud would always be known for its sterling quality. The very fact that the minority opinion was not swayed by the hydraulic pressure in the form of the all-pervasive reality speaks volumes of judicial valour, independence and principle. If “dissent in the court of last resort is an appeal to the brooding spirit of law and intelligence to the future day”, as written by Quondam Chief Justice of the US Supreme Court, Charges Evans Hughes, few would doubt that it is the minority opinion which will persuade and convince the justices in the highest court of the land in future of the error which the majority fell into.

The author is an Advocate, Supreme Court of India. He can be contacted at krvijay02[at]rediffmail.com and vijayadv62[at]gmail.com

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