Fraud on the Constitution: Justice Chandrachud’s Stinging Dissent

Justice Chandrachud, in a stinging dissent, said the Aadhaar Act as a Money Bill is a “fraud on the Constitution”.

Justice DY Chandrachud, the sole dissenting voice on a Constitutional panel of five judges, delivered a stinging criticism of Aadhaar to a packed hall of about two hundred.

Courtroom 1 of the Supreme Court, the Chief Justice of India’s courtroom, had lawyers, media and visitors lined up well in advance of the 10.45 am time for the judgment. Once Justice Sikri concluded the majority opinion upholding the constitutional validity of Aadhaar, it was Justice Chandrachud’s turn to read out his opinion.

In an emphatic note that emerged as a sharp counter to the one delivered by Justice Sikri minutes earlier, Chandrachud, seated on the right to all the four judges said, “Constitutional guarantees cannot be subject to the vicissitudes of technology”.

The significance of this statement arises not simply from the fact that it goes against the majority opinion upholding the constitutional validity of Aadhaar. It also acknowledges that Aadhaar has “failed to account for and remedy” the serious issues of exclusion. That citizens have been excluded from welfare owing to lack of Aadhaar has been well documented.

However, the majority judges, in delivering their judgment, are satisfied by the arguments presented by the government and the UIDAI on the constitutionality and security of the programme. “This is why it becomes important to pay close attention to what the dissenting judgment has to say,” remarked Raman Jit Singh Chima, founding member of the Internet Freedom Foundation.

Chandrachud observed that usage of Aadhaar is not reasonable and does not stand the test of proportionality, one that the judge himself had laid out in the majority for the Right to Privacy judgment on 24 August 2017. In saying so, “Chandrachud remarked that Aadhar does not respect people’s dignity and privacy under Article 21 of the Constitution,” Chima added.

So, why should Chandrachud’s eloquent dissent matter?

Three points answer this important question.

First, even though a dissenting judgment does not carry force of law, it does leave the door of possibility ajar for it to be referred to a larger bench at a later time.

Second, the majority judges have made a decision that seeks to support the programme of the state and which allows the state to carry on. The majority opinion appears as needing to support the endeavour of the state in giving collective rights over individual rights.

“The minority judgment interprets the case as people’s interest and acknowledges the idea that the state is the one with power and people are the one on whom it will be exercised and therefore the balance has to be maintained,” said legal scholar Usha Ramanthan, who has been at the forefront of the civil campaign against UIDAI.

Third, Chandrachud highlighted the importance of the Rajya Sabha to our Parliamentary democracy. The Aadhaar Bill as a Money Bill does not require debate in the Upper House and only requires passage through Lok Sabha. It is in this context that that the Judge remarked, “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.”

“The ruling party in power may not command a majority in the Rajya Sabha. But the legislative role of that legislative body cannot be obviated by legislating a Bill which is not a Money Bill as a Money Bill,” he added.

The ruling BJP government does not enjoy a majority in the Rajya Sabha.