Media reports on SC allowing Aadhaar for I-T Returns ‘wrong’

Media reports that the Supreme Court has allowed the Government to link Aadhaar identification to PAN cards and make it mandatory for Income Tax Returns are wrong and misleading, confirm Supreme Court lawyers.

What a large section of the media reported erroneously or mischievously was what happened when a lawyer ‘mentioned’ the matter pending before the apex court and prayed that it be actually listed and heard on April 3, to which it had been shifted from March 27. The lawyer sought an assurance that there would be no further delay.

While turning down the request, the court looked at the order of a five-judge bench in its order dated October 15, 2015 and remarked that the bench had clearly ruled that even for Public Distribution System, Pension, LPG, PF, Jan Dhan Yojana or MGNREGA also Aadhaar “cannot be made mandatory”.

“The court nowhere said that the UID can be asked for other services. That is wrong reporting,” said a lawyer closely associated with the case, adding, “anyone who knows court proceedings knows that the court could not have made any such order, one, because it was a 'mentioning' that was underway, and that was only to fix a date, and such an order could not be passed without hearing the parties to the case, and also because the October 15, 2015 order was by a 5-judge bench, and 3 judges cannot revise/ rewrite/ override that order.”

The October 15, 2015 order had laid down the following:

• The UID can be used in six services: PDS, LPG, NREGA, JDY, EPFO, pensions such as Disability, Widow, Old Age Pensions which are seen as services provided by the state.
• Even in these services, its use "is purely voluntary, and cannot be made mandatory till the matter is finally decided by this court one way or the other".
• The UID number cannot be used in any other service. It is not a matter of whether it is voluntary or mandatory. It cannot be used at all.
• All earlier orders from the first order of the court on September 23, 2013, when it directed that no one can be denied any service only because they do not have a UID card or number, shall be `strictly followed'.
• That includes the order dated August 11, 2015, which, among other things says that enrolment is not mandatory (which makes their notifications saying that those who do not have a UID number should be shepherded to the enrolment station is in contempt of court).

On October 15, 2015, the 5-judge bench heard a series of applications for expansion of the use of the number, including the TRAI that came to court saying that they could deal with terrorism if they were able to use the UID number for giving and checking SIM cards.

The 5-judge bench refused this use. This refusal by the 5-judge bench was suppressed by the Attorney General, says a senior lawyer, when he told the court in a matter taken to court by Lokniti, an NGO, that they intended to make SIM cards secure by having it checked against the UID. The court reproduced this submission and disposed of the matter.

This has been read by some part of the media as an order by the court that SIM cards should be checked against the UID, which is inaccurate. This did, however, mean that the court did not object to such use. That was a 3-judge bench, and could not have overridden a 5-judge bench.

The senior lawyer added, “This happened because the Attorney-General did not inform the court, and since it was not a UID matter that was being heard, there was no one challenging the UID project who could have pointed this out to the court. The Attorney General, in other words, kept the three-judge bench in the dark about what had happened before the five-judge bench.”

Usha Ramanathan, a lawyer and activist who has been opposing the UIDAI, is also emphatic that the government’s attempt to make UID mandatory for filing Income Tax returns and PAN card is in contempt of court.

The reason the court so restrained the Government, she says, is because it had seen the various dimensions of the project that made up the challenge before it, including:

• surveillance
• profiling
• tagging
• tracking
• insecurity of the data base
• national security issues, posed both by the creation of such databases, and because of the companies involved which includes L-1 Identity Solutions, Morpho and Accenture, which have close connections to the intelligence establishments of foreign governments.
• lawlessness
• the use by private actors, and
• importantly, the denial of the right to privacy of the people that the government had asserted before them.

Ramanathan points out that when the Government directs that we put the UID number on various databases, they are violating not just the order of the Supreme Court, but their own law (which they passed as a Money Bill, to stifle discussion and dissension). Nowhere does the Act of 2016 authorise the ‘seeding' of numbers in databases, she says. It allows only two things:

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. eKYC, which does something they had said they would never do, viz., give the data on their database (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.