Understanding the Aadhaar Case

After hearing the contentious Aadhaar case on December 14, 2017, a five member Constitution Bench has extended the hearings to January 11, 2018. The final hearings in the matter will commence then. Aadhaar-Linking Of Bank Accounts, Mobiles Phones Extended To March 31. But following the re-iteration in the Order passed yesterday, no Institutions (Centre/State/Private) can force or compel citizens to link the Aadhaar before the final judgement of the Court. The Supreme Court has extended the deadline upto March 31, 2018. The interim order may be read here

HIGHLIGHTS

Supreme Court order is an interim or temporary one Activists say making Aadhar-linking necessity violates right to privacy.  The deadline for linking bank accounts, mobile phones and government welfare scheme to Aadhaar or national identity cards is now March 31, the Supreme Court today ordered, accepting the centre’s suggestion.

The government had earlier set a deadline of December 31 for Aadhaar-linking. On Wednesday, the government told the court that the deadline can be pushed to the end of March.

The court today also ruled that new bank accounts could be opened without an Aadhaar ID number, but that it has to be furnished by March 31.

The order is an interim or temporary one, which will be in effect till the court decides whether making Aadhaar – a biometric identification programme – mandatory for welfare schemes and financial transactions, like getting a loan or filing taxes, violates the constitutional right to privacy. Final hearings on the constitutional validity of the program are set to begin on January 11.

The bench consisted of CJI, Deepak Mishra, Justice A K Sikri, Justice A M Khanwilkar, Justice D Y Chandrachud &  Justice Shri Ashok Bhushan.

During arguments yesterday, senior counsel, Shyam Divan, Gopal Subramanium and Arvind Datar appeared for the petitioners. The Attorney General of India, AK Venugopal appeared for the Union of India.

Beginning his arguments yesterday, Divan read out the objects of the Aadhaar Act. Specifically he reads Section 3 (1) of the Act where every resident is entitled to an Aadhar card, but no one is obligated to enrol for Aadhaar. Thereafter he dealt with Section 7 at which point Justice Chandrachud remarked that under says Section 7 (which allows for an alternative ID), this provision is only made for the period between application and assignment of number.

Shyam Divan replied, saying these two interpretations of Section 7 were noticed in the Binoy Viswam judgment of the SC which also makes it clear that Aadhaar remained voluntary under the Act. He also stressed there is nothing in the Act or statement of objects that indiciate any intention to override the orders passed in the Binoy Viswam judgement. Thereafter, Divan reads

Section 57 of the Act, pointing out that nothing in section 57 that also overrides the judgment Binoy Viswam judgement.

Divan also dealt with the Lokniti order to the court and pointed out that the Lokniti order never made Aadhaar phone linking mandatory. However, the department of technology (DoT) had manifestly misinterpreted this judgement and made it mandatory for mobile phones to Aadhaar linking which is clearly without authority of law. Finally, Divan dealt with upcoming deadlines of different government departments stating that there is no clarity on the issue although the gazette notification applies to them. There are no equivalent press notes, either. He thereafter reiterated the earlier orders of 2015 and earlier and sums up stating that even a statute cannot wish away the orders of the Court.

Gopal Subramanium, in his submissions states that it is abundantly clear that even for the six schemes, within the Act, it has to be voluntary. The numerous reiterations were required because even before the Act there was widespread violation. He added that, if the basis of those interim orders is the dignity of citizens, to protect fundamental rights, cannot be abrogated by legislation.

Subramaniam also points out that the Central Government has passed 139 notifications under Section 7 of the Aadhaar Act that covered every activity of citizens. He states, “This Court exists to protect the most vulnerable. Can this Court stand by when a notification is passed making Aadhaar compulsory for children of bonded labourers?”

At this point Justice Chandrachud says that Section 7 authorised Aadhaar to be made mandatory for services. Subramaniam replies stating that for the purposes of yesterday’s hearing, what is relevant is whether Section 7 can authorise a compulsion contrary to the orders of the Court. Notifications under Section 7 are not even delegated legislation, they are conditional legislation.

‘The rule of law contemplates obedience to the orders of the Court. Otherwise it will become a rope of sand. He concludes.

Thereafter, Arvind Datar, commences his arguments for the petitioners and states that even if you assume that Aadhaar can be made compulsory under Section 7, that’s only for services paid for by the Consolidated Fund. ‘What does making Aadhaar mandatory for the death certificate have to do with Section 7.’ He asks. ‘What do exam hall tickets have to do with Section 7?’ These are all clear examples of overreach. He re-iterates that you can’t make Aadhaar mandatory by a notification. Datar also points to the draconian consequences.

Another senior Counsel points to examples of data leaks to which Justice Khanwilkar  responds saying that this cannot happen under Section 28 and 29 of the Act. Anand Grover (the next counsel for the petitioner) says that he will answer this question. He says that the moment you link, silos break down and the data protection law is not in place yet. Anand Grover says that biometrics and iris scans are not foolproof and  this leads to exclusion, 8 crore people have been excluded and this data is outsourced to private parties.

Justice Sikri responds saying that all the data is encrypted under the law. To which Anand Grover responds saying that while we (petitioners) filed an RTI asking about which companies have been given the data, they (government) has not answered

Thereafter interim orders are passed.

A Detailed Note prepared by one of the petitioners that was handed over to the Court, in April 2017, by senior counsel Shyam Divan is published here .