‘Fraud on the Constitution’

Justice Dhananjay Chandrachud

Although the Aadhaar project has survived for now, the constitutionality of the Aadhaar Act could face a future challenge. If it does, it will probably be on the basis of Justice Dhananjay Chandrachud’s dissenting opinion that held the Narendra Modi government’s act of passing the Aadhaar Bill as a Money Bill to be a “fraud on the Constitution”. Excerpts from the judgement:

The Aadhaar Act was passed as a Money Bill. The provisions of the Act need to be analysed to determine whether the Act is a Money Bill. The Preamble of the Act states that it is:

“An Act to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto.”

The Preamble focuses on the delivery of subsidies, benefits and services for which the expenditure is borne from the Consolidated Fund of India. But the essential issue is whether the Act confines itself to matters which fall within the ambit of Article 110.

…Introducing the Aadhaar Act as a Money Bill has bypassed the constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act as a Money Bill is an abuse of the constitutional process. It deprived the Rajya Sabha from altering the provisions of the Bill by carrying out amendments. On the touchstone of the provisions of Article 110, the Bill could not have been certified as a Money Bill.

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. Passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of 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. That would constitute a subterfuge, something which a constitutional court cannot countenance.

Differences in a democratic polity have to be resolved by dialogue and accommodation. Differences with another constitutional institution cannot be resolved by the simple expedient of

ignoring it. It may be politically expedient to do so. But it is constitutionally impermissible. This debasement of a democratic institution cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures.

The Act thus fails to qualify as a Money Bill under Article 110 of the Constitution. Since the Act was passed as a Money Bill, even though it does not qualify to be so, the passage of the Act is an illegality. The Aadhaar Act is in violation of Article 110 and therefore is liable to be declared unconstitutional.

 

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‘Fraud on the Constitution’

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