Mere absence of a law can be cured by subsequently enacting one with a retroactive effect, but this new law cannot cure “breaches” that occurred prior to it, Justice D.Y. Chandrachud observed orally during a Constitution Bench hearing in the Aadhaar challenge.
The judge, who is a part of the Constitution Bench led by Chief Justice Dipak Misra, was referring to the mass collection of personal data from citizens during the pre-Aadhaar Act years from 2009 to 2016. The Aadhaar law came into existence in 2016.
The judge was responding to submissions made by senior advocate Gopal Subramanium, for petitioners, that the subsequent enactment of Aadhaar Act in 2016 cannot cure the “complete invasion of privacy” which occurred in the pre-statute years of the Aadhaar scheme.
“There is no embargo on the government to cure the deficiency of absence of law by enacting a legislation subsequently. A breach because of the absence of law can be cured by enacting a law. But, on the other hand, if there are other breaches on fundamental rights, we have to see whether this curative law (Aadhaar Act) can cure those breaches,” Justice Chandrachud addressed Mr. Subramanium.
He said the abrogation of fundamental rights which occurred during the collection of personal information during the pre-Aadhaar Act years was a “choate act” in itself.
“There was no voluntariness on the part of the citizen in its true sense, all the purposes for the collection and use of the personal information was not conveyed to him, the information was open to be shared among other entities, including private parties. All this made the collection of data unlawful,” Mr. Subramanium argued.
He claimed that the Aadhaar Act itself was “violative of fundamental rights”. “No Act can retroactively protect fundamental right. There cannot be a retroactive assertion of substantial and procedural reasonableness... That is, the Act cannot ratify anything illegal,” Mr. Subramanium submitted.
“The enactment of 2016 cannot cure the breaches that happened prior to it,” Justice Chandrachud observed.