Making a mockery of the Supreme Court order on Aadhaar

'The attempt to make Aadhaar mandatory has now emerged as an act of bullying by government agencies, turning citizens into subjects by making fundamental rights conditional on biometric identification,' says Gopal Krishna.
Illustration: Dominic Xavier/Rediff.com

Just a day before the Supreme Court lambasted the Centre for making Aadhaar compulsory for availing government services, Dr Sajjan Singh, assistant registrar (evaluation) at Jawaharlal Nehru University, issued a circular bearing the subject line, 'Inscription of Unique ID/Aadhaar Number and photograph in marksheets and degree certificates'.

Referring to a University Grants Commission letter in this regard, the circular, inter alia, said:

'Aadhaar number has been made mandatory to inscribe in the mark-sheets and degree certificates in respect of the Indian national students and Unique ID for foreign national students to be generated by the Admission-II Section (sic).'

It also said, 'Aadhaar number has been made a mandatory column in the semester registration and admission folio.'

This is tantamount to contempt of the Supreme Court which has very categorically stated that Aadhaar cannot be made compulsory and it is only an optional requirement.

It must be noted that whenever circulars and letters of central and state government agencies have been challenged or contested, they were always withdrawn.

In 2016, when a UGC circular (external link) making Aadhaar number mandatory for disbursement of all government subsidies/scholarships/fellowships which are to be disbursed directly into the beneficiaries account was challenged, a clarification was issued by the Union ministry of human resource development.

In the clarification (external link) issued on September 14, 2016, the HRD minister made it clear that 'any student who have (sic) applied or wishing to apply for scholarship/fellowship shall not be denied benefit thereof due to non-availability of Aadhaar no./card.'

The current JNU circular is based on two UGC communications dated March 21 and July 26, 2016, with the latter stating, 'the bank account number seeded with Aadhaar should be mentioned on the portal.'

Notably, both these communications were issued during the period in which the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, was not in force. It came into force after its notification in the Gazette of India on September 12, 2016.

Therefore, the circular is illegal and is in violation of the Supreme Court's order.

Moreover, nowhere does the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, provides for and authorises 'seeding' of UID/Aadhaar numbers in databases.

The Act permits it only for two uses:

1. Authentication, which means that biometric or demographic data can be sent to the UID's CIDR (Central Identities Data Repository) to return a 'yes/no' reply to the question whether you are who you say you are.

2. e-Know Your Customer. This does something they said they would never do, viz, give the data -- except core biometric data, but they have no means of stopping any agency from collecting and keeping biometrics when it is given for authentication -- to an authorised service agency.

Section 8(2) (b) of the Act categorically states that an agency requesting authentication 'ensure(s) that the identity information of an individual is only used for submission' to the CIDR of 12-digit biometric Unique Identification/Aadhaar numbers 'for authentication'. It does not authorise anyone to hold onto the number.

Therefore, seeding the UID/Aadhaar number, as required by the UGC or JNU, is itself beyond the law.

When it comes to complying with the Supreme Court's order making Aadhaar optional, all government bodies should learn from the Election Commission.

The EC revised its order dated February 27, 2015, on August 13, 2015, following the court's order making UID/Aadhaar optional. Its revised order read: 'All further activities relating to collection/feeding/seeding of Aadhaar Number being undertaken currently under NERPAP (National Electoral Roll Purification and Authentication Programme) shall be suspended with immediate effect till further directions from the Commission. In other words, henceforth no more collection of Aadhaar Numbers from electors or feeding/seeding of collected Aadhaar data shall be done by any election authority or officials connected with the NERPAP.'

This revised EC order is a model order. It demonstrates how to comply with the court's order in letter and spirit.

All central, state, public and private agencies which are implementing UID/Aadhaar related schemes and systems are under a legal obligation to issue similar orders.

In a related case, the Supreme Court (in UIDAI v. Central Bureau of Investigation) passed an order in 2014 which said, 'More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled.'

'All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this court forthwith.'

Last week, when the Supreme Court bench headed by Justice A K Sikri asked the attorney general as to how the government can compel anyone to get Aadhaar when there are interim orders of the Constitution Bench, what the AG said in his reply was something which was already stated by Union Minister Ravi Shankar Prasad on April 10 in the Rajya Sabha.

'There is no stay by the Supreme Court,' he said. 'We are being governed by a mandate of the Aadhaar Act passed by the Parliament,' adding, 'I am very clear in my understanding of law that if the Parliament enacts a law and unless the court stays the operation of that law, this law will hold the field and that is what that it holding the field.'

He referred to interim orders of the Supreme Court saying they were passed in 2015 and the Aadhaar Act became effective in 2016, assented by the President.

He took the position that 'an interim order is only for the purposes of interim arrangement till the Parliament structures it. It is not a judgment. It has been referred to a nine-judge or a seven-judge bench. Maybe, this law will also be considered.'

Notably, the Aadhaar Act became effective after it was notified on September 12, 2016, through the Gazette of India.

It is germane to observe that the minister feigned ignorance about the order of the division bench of the Supreme Court dated September 14, 2016, wherein the court reiterated the Constitution Bench's order dated October 15, 2015, which read: 'We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this court commencing from September 23, 2013. We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this court one way or the other.'

While making his submission, the attorney general too seemed to suffer from selective amnesia regarding the Supreme Court's 2016 order, passed after two days of the notification of the Aadhaar Act.

It is an established Constitutional norm that the last order of the Supreme Court prevails over other orders and enacted laws.

As has been the case with the minister, the attorney general referred to an irrelevant Supreme Court order dated February 6, 2017, in Lokniti Foundation v. Union of India.

In fact, in a counter affidavit submitted in the court, the attorney general stated that biometric UID/Aadhaar is voluntary.

In this submission, which has been reproduced in the order of the division bench, it was stated that 'currently, Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection.'

In its petition, the Lokniti Foundation had prayed that 'the Aadhar card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers that can ensure 100 per cent verification of mobile phone,' but pursuant to the attorney general's submission, it is apparent that the bench decided to adhere to the Constitution Bench's order that keeps Aadhaar voluntary.

Quoting this very order out of context, the minister misinformed the Rajya Sabha that 'there is the system of Aadhaar-enabled verification for SIM card for the user. I have got the copy of the order. The Supreme Court has approved it as a very good system which has been incorporated (sic).'

Notably, drawing on the same misrepresentation, the department of telecommunications under him has issued a circular on March 23, making Aadhaar mandatory 'regarding 100 per cent e-KYC-based re-verification of all existing subscribers' in order to implement 'hon'ble Supreme Court orders.'

It is evident that the minister and the attorney general will have us believe that the two-judge division bench's order will prevail over the five-Judge Constitution Bench's order.

The minister's exercise in misrepresentation was exposed by Congress leader Jairam Ramesh in the Rajya Sabha when he pointed out that the minister 'did not mention that there was a Supreme Court order after the Act was passed on September 14, 2016.'

Ramesh underlined that 'he quotes selectively from the 2015 Supreme Court orders. Nowhere in those orders does the Supreme Court say that they are contingent on Parliament passing an Act.'

Hence, the Supreme Court orders make it clear that Aadhaar remains voluntary.

Moreover, four years ago, Justice A K Sikri, then the chief justice of the Punjab and Haryana high court, had heard a case related to biometric UID/Aadhaar and passed an order wherein he had noted that the petition challenging mandatory requirement of Aadhaar 'raises a pure question of law.'

In its order, the bench headed by Justice Sikri observed, 'In this writ petition, the petitioner has challenged the vires of notification issued by the Union of India for making it compulsory to have UID cards.'

But since the executive order of the Union territory of Chandigarh was withdrawn, the case was disposed of in 2013.

In this way, the attempt to make Aadhaar mandatory, which has now emerged as an act of bullying by the government agencies, and turning citizens into subjects by making fundamental rights conditional on biometric identification was stopped in the tracks.

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