Is the Supreme Court right in giving a thumbs up to Aadhaar?

Contrary to the petitioners’ expectation of an interim stay on linking mobile phone connections and bank accounts with Aadhaar, a Constitution Bench of the Supreme Court on Friday virtually conceded the mandatory nature of the linkages by agreeing with the central government’s decision to extend the last date till March-end.

The court in the process accepted the Attorney General’s argument that the two earlier orders of the Supreme Court delivered in 2015, which confined the linkage of Aadhaar to six services and subsidies ( PDS, LPG, EPF, Jan Dhan, MGNREGA and National Security Assistance Programme) had been passed in the absence of a legislation.

But now that the Parliament has enacted the Aadhaar Act, 2016, all the 139 notifications issued by the central government seeking linkages for even hospital admissions and scholarships need to be tested in the light of the provisions in this Act.

Somehow the Division bench did not see any merit in the argument that the Aadhaar Act itself provided for Aadhaar as a voluntary and not mandatory identity.

A Bench of Justice A K Sikri and Justice Ashok Bhushan in June this year with regard to not linking the unique identification number UID)/ Aadhaar number with PAN, in Binoy Viswam vs Union of India case, read, “ It is clear that there is no provision in the Aadhaar Act which makes enrolment compulsory… Fact remains that as per the government and UIDAI itself, the requirement of obtaining Aadhaar number is voluntary.”

On the one hand the Supreme Court fixed January 17 , 2018 as the next date for the on-going hearing challenging the validity of Aadhaar , especially in the context of the Supreme Court’s own ruling earlier this year that Privacy is a fundamental right; while on the other hand it has gone with the Government in making it obligatory for citizens to link Aadhaar with their bank accounts and mobile phones.

The only possible interpretation, say observers, is that the court has made up its mind and that the challenge to the validity of Aadhaar will be dismissed by the court in due course. That is because there will be little point in striking down Aadhaar after forcing the entire country to obtain the identification number and link it with PAN, bank accounts and mobiles.

In the process, the Constitution Bench this week chose to ignore the following arguments put for ward by the petitioners’ counsel :

• SC by its interim orders in 2015 had insulated citizens against compulsion to part with biometrics.
• An interim order protecting citizens’ fundamental rights cannot be obliterated by legislation
• It is another thing that validity of law will be examined by this court later. But the sanctity of judicial order must be maintained
• If it has got nothing to do with the Consolidated Fund of India like subsidies etc, then Aadhaar cannot be made mandatory.
• Article 144 enjoins all authorities to act in aid of the Supreme Court of India, not contrary to its orders.
• Banking system has worked well for the last 70 years without Aadhaar.
• There are serious Constitutional aspects involved, it is not just about mobile or banks. Citizens are being forced to barter their Constitutional rights.

Ironically, while the UIDAI claims to ensure a unique identity to citizens, media reports suggest the process is not fool-proof, as pointed out by this tweet :

A circular of the UIDAI also indicates that the biometrics recorded till now by ‘ unregistered devices’ may not have been safe and could compromise with the data and privacy.