Justice Misra refuses to be moved by rhetoric against government action

Heading a five-judge Constitution Bench, Chief Justice of India Dipak Misra refused to be moved by the “hyperbole and rhetorics” against Aadhaar linking, while observing that the Supreme Court had passed interim orders making Aadhaar voluntary before the Aadhaar Act came into existence in 2016.

The Chief Justice's remarks came on the first day of the Aadhaar hearing after senior advocate Shyam Divan and advocate Vipin Nair for petitioners, argued that despite repeated orders passed by the Supreme Court since 2014, the various agencies and government ministries have gone ahead to issue a whopping 139 circulars making Aadhaar mandatory for nursery admissions to welfare subsidies to student scholarships to CBSE and NEET exams — even for getting a death certificate or treatment for HIV.

Consistent stand

Mr. Divan argued that the Supreme Court had never flinched from its stand, taken consistently in its past interim orders, that Aadhaar should be “purely voluntary” till it took a decision on the constitutional validity of the Aadhaar scheme one way or the other. Mr. Divan said these circulars were issued regardless of the fact that challenge against Aadhaar was still alive in the Supreme Court.

The series of government circulars making Aadhaar mandatory is in the teeth of the Supreme Court orders to continue Aadhaar as a voluntary exercise only for availing subsidies and “dimnishes the stature” of the highest court, Mr. Divan argued.

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Chief Justice Misra said the government circulars were issued under Section 7 of the Aadhaar Act.

“It is not that your orders disappear the moment Parliament passes a law,” Mr. Divan countered.

“So merely because these petitions were pending before this court, the government should have come to this court everytime before notifying under Section 7 of the Aadhaar Act?” Justice A.K. Sikri asked Mr. Divan.

When Mr. Divan handed over news reports showing suffering among the non-Aadhaar holding marginalised people due to lack of access to welfare benefits, Chief Justice Misra said the court is not compelled to look into “newspaper reports and website writings”.

Rights abrogated

Senior advocate Gopal Subramanium, for a petitioner, argued that orders passed by the Supreme Court, including one by a Constitution Bench of the court in 2015, emphasising on the voluntary nature of Aadhaar was under Articles 32 and 142, using the court’s fundamental and extraordinary powers in the Constitution.

“The Supreme Court exercised judicial powers to insulate the citizen from parting with their fundamental right to privacy, dignity and voluntariness through state compulsion, force or coercion. Fundamental rights of the citizen cannot be abrogated by the Aadhaar Act or any kind of legislation. It is against the rule of law and sanctity of judicial orders,” Mr. Subramanium argued.

How could the 139 circulars making Aadhaar linking mandatory override a judgment of a nine-judge Bench of the Supreme Court upholding privacy as a fundamental right? he asked.

Justice D.Y. Chandrachud, who wrote the majority verdict in the privacy case, agreed that Aadhaar Act is concerned only with receipt or expenditure regarding subsidies, funds for which are sourced from the Consolidated Fund of India.

Senior advocate Arvind Datar argued that the circulars issued under Section 7 of the Aadhaar Act have gone beyond mere subsidies. “In Chennai, Plus Two students require Aadhaar to attend their exams... you need Aadhaar to get a death certificate,” he submitted.

Article 144 of the Constitution mandates the government to act in furtherance of Supreme Court orders, not against it, Mr. Datar said.

Data breaches

Senior advocate K.T.S. Tulsi drew attention to reports that 210 central websites have been breached, exposing the personal data of consumers who had linked Aadhaar.

“Privacy is in peril if data is parted to telecoms. There is no data protection law in place till date,” Mr. Tulsi argued.

“Personal data given is not secured inherently. Data is not stored by the government, but outsourced to companies... American companies, who also supply to Pakistan. The individual has no remedy against data breach,” senior advocate Anand Grover submitted.