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Suspense over SC’s interim order on Aadhaar on Friday, as petitioners argue vehemently against mandatory enrollment

The Supreme Court’s five-Judge Constitution bench will pronounce tomorrow its order on the interim prayer of the petitioners challenging the mandatory enrolment of Indian people for the purpose of assigning unique identity numbers under the Aadhaar Act, 2016.

The bench, comprising the Chief Justice of India, Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D. Y. Chandrachud, and Ashok Bhushan, today heard at length senior counsel representing the petitioners, namely, Shyam Divan, Gopal Subramanium, K. T. S. Tulsi, Anand Grover, Arvind Datar, K. V. Vishwanathan, Meenakashi Arora, Sajan Poovayya, Sanjay Hegde and Prashant Bhushan.

The respondents, represented by the Attorney General, K. K. Venugopal, Aryama Sundaram and Rakesh Dwivedi, answered the concerns of the petitioners’ counsel, briefly.

Divan took the bench through the number of interim orders of the Court in this case, from 2015 to the landmark judgment of the 9-judge bench declaring the right to privacy as a fundamental right.  Divan emphasised that all through the Court has been reiterating that Aadhaar cannot become mandatory, till the Court decides the case one way or the other,  and should not be a condition to obtain any benefits.

Divan’s major contention was that an Act of Parliament cannot evade the rigour of the court’s orders, without the Government seeking variation of the same.  Divan, at one point, said the Court must be concerned about protecting its own institutional majesty, even if there is a debate over whether it involves the question of safeguarding the liberties of people.

Divan also relied on the privacy judgment, wherein it was held that any restriction on the right to privacy, must be backed by law.   Even after the privacy judgment, the Government has been making Aadhaar mandatory through circulars, rather than law, he suggested.

Divan gave several instances to buttress his stand.  HIV-affected patients, who avoid enrolling for Aadhaar because of the stigma, have been denied their treatment, he alleged.

When the Chief Justice requested Divan to avoid rhetoric and hyperbole, Divan suggested that the bench could ignore it, and focus on the issues which he raised.

When the CJI asked what was the basis of the Court’s earlier interim orders, which Divan said could not be overruled through legislation, Divan explained that it would not make any difference. “The Supreme Court’s orders have complete sanctity, regardless of what the statute does”, was his reply to the CJI, adding the Union of India, even after the enactment of the Aadhaar Act, must have sought variation of the Court’s orders.

It was left to Gopal Subramanium to effectively answer the query posed by the CJI.  Subramanium argued that the basis of the Court’s interim orders in this case involved the fundamental rights of the people.  Therefore, he suggested the UOI could not have unilaterally overruled the order through legislation,  without seeking the Court’s permission.  “Paramountsy of the Court’s orders is in the exercise of jurisdiction under Article 142”, he said.  Through the interim orders, the Court had insulated the citizens against any compulsion; by restricting the Aadhaar scheme to first two, and then to six benefits/services, the Court made it abundantly clear that it should be voluntary, he added.  “All the orders of the Court have one pattern”, he emphasised.  The Court clearly called upon the Centre to scrupulously follow its order.

Subramanium explained that the basis of the Court’s interim order in this case, is intertwined with fundamental dignity of the individuals.  Therefore, he said the interim order protecting the fundamental rights of the citizens can’t be abrogated by law.   He pointed out that there have been 139 notifications by the Centre, making Aadhaar mandatory for various benefits and services.

He pointed out that Section 7 of the Aadhaar Act does not say it is compulsory.  Section 7 says as follows:

“7. The Central Government or, as the case may be, the State Government may, for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment: Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service.”

Senior counsel, Arvind Datar, referred to the bizarre instance of denial of funeral of a deceased person, because the relatives did not have the Aadhaar number.  “This is a clear case of overreach of Section 7”, Datar said.  Section 7 is completely ultra vires, he further emphasised.

Datar also pointed out that students without Aadhaar are being denied hall tickets to sit for examinations.  The threat to block one’s bank accounts, if they are not linked with Aadhaar number, has draconian consequences, he said.   He pointed to the recent striking down of no-bail provisions in Prevention of Money Laundering Act, as an example.  Finally, he said, all must act in furtherance of the Supreme Court’s orders, not in their violation, under Article 144.

Senior counsel, K.T.S.Tulsi, said telephone is part of one’s personality, and without a data protection Act in existence, one’s privacy is in peril.    He referred a recent report in Financial Express, which pointed to 200 Central Government websites being breached.  The list of beneficiaries were made public, because there is no data protection law at present.  Once breached, the damage is done, he suggested.  If anything happens, there is no way status quo ante can be restored, he further warned.

Senior counsel, Anand Grover, told the bench that the biometrics, or the iris is not foolproof.  There is inherent duplication, and Aadhaar is not secure, he suggested.  The Government does not reply to RTI applications seeking clarity on the contracts given to the companies, which are associated with data, he said.

Data is not secure, but available to corporate entities, he alleged. Without the data protection infrastructure, if breach occurs, there is no remedy, and therefore, interim protection is necessary, he emphasised.

Senior counsel, Aryama Sundaram, representing one of the respondents intervened to say that Aadhaar only seeks to establish the identity of an individual, and no other information about the individual is shared.

The Attorney General, supporting the contention, said, Aadhaar is an effective substitute for the Know Your Customer of the bank.

Senior Counsel, K.V.Vishwanathan, cautioned that even if you compel on one aspect, the purpose is defeated substantially.

The AG asked if finger prints can be shared for the purpose of securing passports, what is the difficulty in sharing biometric information for Aadhaar.

To this, K.V.Vishwanathan replied that there are constitutional questions involved, and the Supreme Court had already rejected the UOI’s contentions.

Senior counsel, Meenakshi Arora, contended that  Section 7 of the Act is voluntary.  “What can’t be done directly, under the statute, can’t be done indirectly.  Whole nation can’t be suspect for money laundering, if that is the  purpose for insisting Aadhaar for bank accounts. If one’s entitlements are denied, and subsidies are refused on the ground of non-possession of Aadhaar, there is a clear violation of Article 14”, she said.

Citing balance of convenience, it was contended by the petitioners’ counsel, that there would be irretrievable injustice, if the Government had its way in making Aadhaar mandatory.

Prashant Bhushan expressed his concern that by virtue of linking of bank accounts with Aadhaar, the Government would come to know all transactions. “This is a serious invasion of my privacy.  If it is meant only for extending benefits, why should the Government know what I am purchasing or when I am purchasing”, he asked.

Rakesh Dwivedi, representing one of the respondents, answered that the Government would not know, and there is no sharing of information.

The petitioners’ counsel urged the bench, to restrict the State Governments from imposing arbitrary deadlines on the people to enrol for Aadhaar.

Rethink Aadhaar, a watchdog body protesting against the mandatoriness of Aadhaar, said in a press release:

“The hearing today had several positive developments, and we now wait for the formal order to follow. Today’s hearing despite concerns is a positive outcome also as the court has given a date for final hearing, which has been pending for nearly two and half years now.

The Supreme Court has now fixed final arguments in the Aadhaar matters to start next year, from January 17, 2018. Following this, the date of hearing may vary by two or three days but arguments will now start. The formation of the constitutional bench which sat today is likely to be the same for the final hearing.

The deadlines for linking are extended till March 31. This may include bank linking, mobile and Public Distribution System ration and other welfare schemes. As of now, there is not sufficient clarity on the scope of the extension of deadlines, and this will be confirmed only by tomorrow.

Questions on whether today’s extension applies to all residents, or only those who have not yet enrolled and received an Aadhaar number, is something which remains unclear as of today.

Read the Order below:

35071_2012_Order_14-Dec-2017-watermark

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