SC: Aadhar not mandatory & Constitution bench to consider the right to privacy question

By Pushan Dwivedi and Joshita Pai

Highlights from the Court’s ruling

The Supreme Court bench constituting J. Chelameswar, S.A. Bobde and C. Nagappan has decided to refer the challenges to the Aadhar program to a constitution bench, especially to determine the existence of a right to privacy as a fundamental right.

The Apex Court passed an interim order directing the government to publish in electronic and print media that the enrollment is not mandatory. It also made it very clear that the production of the Aadhar card cannot be made compulsory for essential services. With respect to the sharing of personal information, the Court has ordered a strict non-disclosure of information unless the information is sought through a court order for the purpose of a criminal investigation. The purpose of Aadhar has been limited to the Public Distribution System including distribution of food grains and kerosene only.

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Arguments in court

Advocate Shyam Divan, appearing for the petitioners, asked for interim relief and for directions to suspend further Aadhar enrollments, prohibit commercial use of Aadhar database, and to direct the government to telecast advertisements to the effect the Aadhar is not mandatory. He based his arguments on the notable absence of any government officer supervising the process and the dearth of statutory framework monitoring the program.

The Attorney General rebutting the plea of suspension of further enrollments insisted that the balance of probabilities have shifted in favour of the government since ninety one percent of the adult population has already been enrolled. He dismissed the privacy concerns relating to the use of database stating that the petitioners stating privacy qualms do not represent the majority of the population. He also argued that the purpose of issuing Aadhar cards is to provide social benefits to people and the program is not built with the aim of carrying surveillance. On the question of making it clear that Aadhar is not mandatory, the AG affirmed that the government is willing to advertise to the public that the enrollment is not mandatory.

There is no data available verifying the number of enrolled citizens. Soli Sorabjee remarked that “there are eight million people who have enrolled that are not to be found in the Aadhar database” His line of arguments primarily focused on the absence of any statutory system monitoring it.

A copy of the interim order can be found here: Aadhar Interim Order

(Pushan Dwivedi and Joshita Pai are Research Fellows at the Centre)

Government says it cannot provide subsidies without Aadhar

Author: Nikhil Kanekal

The union government’s position on Aadhar attained some clarity during a hearing before the Supreme Court on Tuesday. Attorney General Goolam E. Vahanvati told the bench, “You (citizens) need not take Aadhar. It is not mandatory. But if you want to get a benefit, if you want to get a subsidy, then you need to get Aadhar.”

The court, however, refused to vacate its interim order of 23 September, causing much heartburn to the union government, which simultaneously moved a bill through the union cabinet to legitimize the Unique Identity program or Aadhar. The bill is expected to be tabled in Parliament during the upcoming winter session and finally give Aadhar a statutory status. Justices B. S. Chauhan and S. A. Bobde said the court would hear the case at length on 22 October.

The government submitted to the court that Ministry of Petroleum and Natural Gas (MoPNG) relies on Aadhar to provide subsidies to the public. “There is a problem now. MoPNG distributes subsidised cooking gas to the tune of Rs. 40,000 crores,” said Vahanvati to the bench, adding, “Aadhar is the only foolproof mechanism through which we can do this.”

Justice Bobde observed: “You are saying it is a condition of supply. But there was a series of problems.” – referring to the non-payment of salaries by the Bombay High Court to those who did not possess an Aadhar card, as well as other controversial policies by some departments, who made it mandatory to receive basic public services. “This is a double-edged sword. You file you affidavit with all the other applicants, then we will see,” said the court.

The government approached the court for a modification in its order which said “no person should suffer for not getting the Adhaar card inspite of the fact that some authority had  issued a circular making it mandatory”. This has caused the government concern because it has begun using Aadhar to provide direct cash transfers (Direct Benefit Transfer) to residents so that they can avail subsidies on cooking gas.

Additional Solicitor General Nageshwar Rao, who appeared for three companies engaged in the distribution of cooking gas to consumers, told the court that unless it vacates, at least partially its order, “the distribution of subsidised gas would come to a grinding halt”.

Vahanvati pleaded, “Please see my application; if you can give me some relief today, then thousands of people will benefit.” However, when the court continued to refuse on the ground that it would hear the case later, Vahanvati accepted, but cautioned, “In the meantime people will not get subsidised gas.”

Earlier, a procedural controversy briefly stalled proceedings with Anil B. Divan, counsel for the petitioner, accusing the government’s law officers of “mentioning the matter behind our backs” before different benches of the court. He said the government was attempting to get an order from the court without the presence of the other side. He also claimed that the government had failed to serve its affidavit to all the petitioners in advance, thereby denying them a chance to respond in writing or come prepared to the hearing.

The court adjourned the matter directing the government to serve and respond to all petitioners in the case.

SC asks Govt to make sure Aadhar not mandatory to avail services

Author: Nikhil Kanekal

In a writ petition challenging the Indian government’s tacit insistence on citizens using Aadhar cards for public services,  the Supreme Court passed an interim order on Monday asking the government to make sure that no citizen is denied services for not possessing an Aadhar card.

A bench comprising justices B. S. Chauhan and S. A. Bobde directed the union government to ensure that “no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory”.

The court also asked the government to make sure that Aadhar cards are not being given to illegal immigrants: “it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.”

The government admitted before the Supreme Court that Aadhar cards were in fact not compulsory. To be sure, the Unique Identity Authority of India (UIDAI), which issues the Aadar cards as a universal identity to citizens, has said Aadhar is not mandatory for public services. However, it increasingly appears that basic public services are not available to citizens that don’t have an Aadhar card. This is being achieved by linking services with Aadhar. In some parts of India this could mean that a person needs to have a UID to get subsidized cooking gas. Although citizens are normally able to avail public services through various other forms of state-issued identification (such as passport, driver’s licence, voter ID, PAN card), the processes being followed by the central government and some state governments on certain public services (registration of marriage) and subsidies (cooking gas) has led many to believe that it is only a matter of time before Aadhar becomes mandatory in order to deal with the state.

In the instant case, a retired judge of the Karnataka High Court was told that he would not be paid his salary and dues, unless he got himself an Aadhar card. Unwilling to accept this, he filed a petition in the Bombay High Court.

An excerpt from a Press Trust of India report carried by Business Standard:

During the brief hearing, the bench of justices B S Chauhan and S A Bobde was told that despite the fact that the Aadhar card is “voluntary” in nature, an order has been issued by the Registrar of the Bombay High Court in pursuance of an order of the state government that it would be necessary for disbursal of salary of judges and staff also.

“The scheme is complete infraction of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty). The government claims that the scheme is voluntary but it is not so.

“Aadhar is being made mandatory for purposes like registration of marriages and others. Maharashtra government has recently said no marriage will be registered if parties don’t have Aadhar cards,” senior advocate Anil Divan, arguing for Justice (retd) K S Puttaswamy, former judge of Karnataka High Court, said.