Monthly Archives: July 2017

Bombay High Court Delivers Per Incuriam Decision Regarding Aadhaar

Judgments of Supreme Court are binding upon High Courts. Similarly, judgments of higher bench of Supreme Court are binding upon smaller benches of Supreme Court. As on July 2017, Aadhaar is absolutely optional due to interim order (pdf) of Constitution bench of Supreme Court. This is a clearly settled rule that is well within the knowledge of all High Courts of India. So any High Court that deviates from this optional rule of Aadhaar would be only giving a Per Incuriam judgment. Further, the doctrine of Stare Decisis has to be tested in the context of interim order of Constitution Bench of Supreme Court.

In one such bizarre judgment, the Bombay HC refused relief to a Mumbai resident who insisted on not getting an Aadhaar card for himself and his son for college admissions. This decision is not only Per Incuriam but also a clear deviation from the Stare Decisis doctrine. This also means that judicial discipline and constitutional arrangement between High Courts and Supreme Court is no more applicable in India.

Surprisingly, the Bombay High Court first suggested the petitioner to get enrolled for Aadhaar and in the meanwhile, it would ask his son’s college to keep a seat vacant. But the petitioner refused, citing a 2015 Supreme Court order that said Aadhaar is a voluntary decision. The petitioner was well within his rights to do so as his Fundamental Rights protects any forced Aadhaar enrollment.

However, the HC bench of justice BR Gavai and justice Riyaz Chagla said the petitioner was being adamant merely for the sake of argument. “We fail to understand the instance of not obtaining the Aadhaar card. It appears the petitioner is adamant and wants to take a stand only for the purpose of adamancy. We are therefore not inclined to grant interim relief,” the bench said. Now what type of logic and legal reasoning is this? If a person wishes to enforce his Fundamental Rights, how can a High Court refuse to comply with the same?

What is more surprising is that even the state resolution only directed educational institutes to conduct Aadhaar registration drives for students and it did not make Aadhaar a binding requirement for admission or readmission. The Bombay High Court even ignored this ground reality.

Petitioner must challenge this decision of Bombay High Court in Supreme Court immediately. This is not how career of young and brilliant minds must be jeoparadised for an unconstitutional technology like Aadhaar. Even Supreme Court must now wake up before people start ignoring Judiciary altogether.