By Arpita Biswas
In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of a fundamental right has been upheld, challenges against the Aadhaar programme are yet to be adjudicated upon.
Yesterday, hearings for interim relief took place before a Constitution Bench. The Bench was comprised of the Chief Justice , Justice A. K. Sikri, Justice Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan.
Senior counsel Shyam Divan commenced his arguments, by referring to a series of orders relating to the requirement of Aadhaar for certain services.
Referring to an order passed earlier, Mr. Divan stated that the final hearing was slated to commence at the end of November and that the court had guaranteed that there would be no need to grant interim relief. Reads out more from order.
He also referred to an order passed on the 12th of July, 2016 and one passed on the 23rd September, 2013.
The latter order stated that ‘no other person should suffer for not having an Aadhaar card’.
Mr. Divan reiterated that if a person is otherwise entitled to a benefit they should not have to suffer because of Aadhaar.
He then went on to refer to orders passed on the 16th of March, 2015 and the 11th of August, 2015.
Referring to the orders, he stated that Aadhaar cards were only meant to be issued on a consensual basis and that biometric information could only be used for social benefit schemes.
He then referred to ‘carve outs’ mentioned in the order, with regard to the use of biometric information. These ‘carve outs’ however, were only in the context of PDS and LPG distribution. Other than these ‘carve outs’, the use of biometric information could not be mandated
Mr. Divan then mentioned that the government of India was seeking a variation of this order, which lead to an order passed by a 5 judge bench.
This order created exceptions, other than the above mentioned carve outs. These referred to the MNREGA, the Jandhan Yojana and two other schemes. The status therefore was that earlier orders would not be diluted, but would only refer to those schemes. Other than these 6 schemes, Aadhaar cannot be made mandatory.
He then reiterated that the 23rd September, 2013 order would have to be followed.
Referring to an order dated 14th September, 2016, the Aadhaar card scheme was declared to be voluntary.
He also went on to refer to scholarship schemes and the requirement of Aadhaar in that regard, stating that the instances were in violation of the institution put in place.
Referring to the judgment Puttaswamy vs. Union of India, he mentioned that mandatory linking would have to be backed by law.
He then drew attention to the CBSE’s initiative to mandate Aadhaar linking for online enrolment of students. He said that if this was allowed, every child would be on a national network. This ‘mandatory’ requirement was not statutorily backed either.
He stated that there could not be any mandatory requirements until the final hearing.
He then referred to the UGC’s mandatory requirement or Aadhaar for disbursing scholarships, stating that it would be unfair for the students.
At this point, the Attorney General stated that with regard to actions being taken by the UP government and other external bodies mentioned, they had not been made parties.
Mr. Divan reiterated that once an order has been passed by the Supreme Court it has to be followed by everyone.
The Attorney General made reference to the fact that the Aadhaar act was passed subsequent to the 23rd September, 2013 order being passed.
The Chief Justice questioned why newspaper writings and online sources were being relied on.
Mr. Divan mentioned that notifications and orders were also being referred to.
He also brought attention to how mandating Aadhaar was affecting the general population, stating that HIV patients were being denied medical treatment for not having Aadhaar cards.
At this point, Justice Chandrachud questioned if the Aadhaar Act would provide statutory backing for the issues mentioned above.
Mr. Divan responded stating that even if we assume it does, we cannot ignore an order passed by the Supreme Court.
The Chief Justice stated that the order was passed when a scheme was in place, but now there is an Act in place.
Mr. Divan stated that regardless of the Act being published, the order would still be applicable and would not merely disappear because of the Act. For changes to be made, the possibility of a variation of the order would have to be considered.
Mr. Divan then went on to read out provisions from the Aadhaar Act, and stated that alternative means would always be available in the statute.
He also drew attention to certain provisions of the Aadhaar Act, through which the use of Aadhaar for any other purposes is regulated. In addition to this point, he also commented on the nature of a ‘money bill’ and how this particular act was passed through a money bill. Referring to Article 110 of the Constitution, he elaborated on the definition of a money bill and remarked on the nature of the Act passed.
Relying on 2 judgments, the Bench responded stating that the argument about the money bill could not be addressed now.
Mr. Divan responded stating that it was only being pointed out and that it was evidence of further arguable submissions.
He then focussed on linking Aadhaar with cell phones. He stated that since there was no statutory backing, this could not be done.
Referring to circulars issued by the Department of Telecommunication to service providers on the 16th of August, 2016 and the 23rd of March, 2017, he stated that the availability of the Aadhaar eKYC scheme proved that there were alternative processes for the proof of identity. The eKYC process would be an alternative to the existing process.
Referring to the principles laid down in Puttaswamy vs. Union of India, he mentioned that there could not be any question of mandating Aadhaar.
He also referred to the deadlines for linking Aadhaar with bank accounts being extended and discussed the possibility of linking with other services being extended as well.
Lastly, he reiterated that the order passed on the 23rd of September, 2013 had to be followed and that Aadhaar could not be mandated.
Senior Counsel Gopal Subramaniam commenced his arguments. He stated that the orders passed by this court are in exercise of its jurisdiction. The judicial power of the Supreme Court was being exercised in favour of citizens to ensure that they were being insulated against any form of compulsion and duress.
He then stated that it had been made abundantly clear that the voluntary nature of Aadhaar must be underscored.
He stated that the order was based on two issues – the voluntariness and the rights of the citizen. He also stated that this basis could not be removed from the statute. If the basis was intertwined with voluntariness and fundamental dignity, the court would then be protecting the fundamental rights of citizens.
He then referred to Section 7 of the Aadhaar Act and focussed on the requirement of a ‘subsidy, benefit or service’.
At this point, Justice Chandrachud enquired if Section 7 could impose a compulsion, overriding the order.
Mr. Subramaniam stated that this would not be possible since it was a conditional legislation and not a delegated legislation.
Senior counsel Arvind Datar commenced his arguments.
He started off by stating that Section 7 of the Act had a direct nexus with benefits and subsidies, but that Aadhaar was now being mandated for even death certificates, which would seemingly be outside its purview. He stated that it was a clear case of overreach and was outside the purview of Section 7.
He stated that Aadhaar couldn’t be made mandatory by a notification, and procedure under parliamentary law would have to be followed.
He mentioned that without the receipt of benefit from the state, Aadhaar could not be made mandatory and that under Article 144, all civilian authorities must act in aid.
Senior counsel KTS Tulsi commenced his arguments. He stated that as the data protection law was not in place, there was a danger of data being compromised with. If data is given away to telecom companies, in the absence of a data protection law, anybody’s right to privacy is in danger.
He made reference to several data leaks, stating that central government websites had been breached. He also made reference to RTI’s that confirmed data leaks. He stated that in the event of a data breach, the damage would’ve been done and the Aadhaar exercise would’ve been nullified.
The Bench interjected, stating that core information should never be shared anyway, and that recourses could be considered in the aftermath of such specific instances.
Senior Counsel Anand Grover commenced his arguments. He stated that there is no data protection act and that Section 29 is not activated. He also stated that biometric data collection systems are not fool proof, which has been backed by scientific studies. People have been routinely excluded because of the metrics at work. He mentioned that there were issues relating to breach of security and duplication of data and that data storage or collection was contracted out.
Justice Sikri interjected, stating that all of this data is encrypted.
The Attorney General stated that all deadlines had been extended till the 31st of March, with the exception of sim cards and new bank accounts.
The Chief Justice stated that the linking of SIM cards could be extended till the 31st of March and questioned whether the linking of new bank accounts could be extended too.
The interim order will be passed on the 15th of December, 2017 and the final hearings will commence on the 17th of January, 2018.
Update: As per the Court’s order dated 15th December 2017, the deadline for linking all services has been extended till the 31st of March, 2018. For new bank accounts, proof of enrolment would have to be produced.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi