The Supreme Court five-judge Constitutional bench headed by Chief Justice Dipak Misra shall pronounce its interim order on the requirement for mandatory linking of the Unique Identification Number with bank accounts, mobile numbers and other schemes and services at 10:30 AM on Friday. Further, the bench has scheduled the matter for final hearing on January 10, 2018.

Senior Counsel Shyam Diwan on Thursday drew the attention of the bench to the earlier interim orders passed by the apex court in connection with the Aadhaar controversy. On September 23, 2013, it was ruled that no person shall be made to suffer for not possessing a Unique Identification Number even if the same has been mandated by any government authority and that the Aadhaar card shall be issued only after due inspection so as to not issue the same to illegal immigrants. On March 24, 2014, in SLP (Crl.) 2524/2014, it had been reiterated that no one shall be deprived of any services or social schemes for the want of Aadhaar and all government authorities had been directed to accordingly modify any circulars or notifications issued by them. The order dated September 23, 2013 had been reaffirmed on March 16, 2015. Thereafter, on August 11, 2015, a 3 judge bench had held that the Union of India shall publicise via both print and electronic media that Aadhaar is not mandatory for any social security schemes other than Public Distribution System scheme and the LPG Distribution scheme. Finally, on October 15, 2015, a 5 judge bench of the top court had added the MGNREGA scheme, the National Security Assistance Programme, the PM Jan Dhan Yogana and Employees’ Provident Fund Scheme to the earlier list of two schemes. Further, it was held that the order dated September 23, 2013 shall continue to be in force and Aadhaar shall be purely voluntary till such time the matter is finally decided by the Court one way or the other.

Mr. Diwan referred to the judgement dated August 24 of the nine-judges bench of the apex court in the Justice K. S. Puttaswamy matter in so far as it was held therein that the right to privacy under Article 21 can be entrenched only with the backing of a statute. In context of the said judgement, the Senior Counsel submitted that the UGC circular dated 26 June, 2016 mandating Aadhaar for disbursement of scholarships, the CBSE circular dated September 26 requiring Aadhaar for registration for board examinations and the circular necessitating Aadhaar for the NEET, 2017 are in contravention of the judgement, considering the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 intends the procurement of Aadhaar to be purely voluntary.

“The stature of the apex court has been diminished in so far as these notifications have been issued despite the Court expressly confining the mandatory requirement of Aadhar to the said 6 schemes”, argued Mr. Diwan.

In response, Attorney General K. K. Venugopal contended that the said circulars are now statutory in nature having been issued under section 7 of the Act of 2016 .

Mr. Diwan further submitted that after the coming into force of the Act, it was pertinent that the concerned authorities seek a variation of the apex court orders to validate such circulars. He further cited schemes such as National Child Labour Project, the crop insurance scheme, the mid day meal programme of the benefits of which entitled persons are being deprived on account of the mandate of Aadhaar.

The Senior Counsel relied on section 3(1) of the Act of 2016 to advance that the procurement of Aadhaar card is intended by the Parliament as a right and not an obligation, in view of the usage of the term “entitled”.

"In addition, the proviso to section 7 clarifies that in the event of one not possessing the Aadhaar card, an alternative means of identification may be offered . The Aadhaar Enrollment Form under section 3 of the Act states that the enrollment for Aadhaar is to be free and voluntary. Further, it was contended that the aforesaid interim orders had been issued by the top court to curtail the all-pervasive character of section 57 of the Act and hence, the injunction is constitutional", Diwan told the Bench.

Questioning the validity of Department of Telecommunications circular dated March 23 mandating Aadhar-based E-KYC, Mr. Diwan referred to the judgement dated February 6 of the Supreme Court in Lok Niti Foundation v. UOI in so far as it was held therein that Aadhaar is not mandatory for obtaining new telephone connections.

Finally, Mr. Diwan relied on Supreme Court judgement in Binoy Viswam v. UOI wherein it was observed that Aadhaar shall be voluntary except necessitated by statute as in the case of section 139AA of the Income Tax Act of 1961.

Senior Counsel Gopal Subramanium inquired, “Section 7 of the Act of 2016 confers power in the nature of conditional legislation and not delegated legislation. Can the government authorities under section 7 impose compulsions overriding the interim orders of the apex court?”

Mr. Subramanium continued, “The purpose of section 7 is to protect oppressed classes by linking ‘subsidies, benefits and services’ with Aadhaar . The Central Government has issued 139 notifications there-under. Why must students procure Aadhaar number to be able to take exams? Why must children of bonded labourers be required to enroll under the Act of 2016 to avail of the benefits of schemes?”

Senior Advocate Arvind Datar also iterated that by virtue of the said section 7, only schemes that fulfil a two-fold criterion- firstly, being in the nature of ‘subsidies’, ‘benefits’ and ‘services’, and secondly, relating to an expenditure or receipt on the Consolidated Fund of India- may be mandatorily linked with Aadhar. “In August this year, the Ministry of Home Affairs has required the procurement of Aadhar card for even issuing the death certificate. There is clearly being an overreach under section 7”.

Attorney General K. K. Venugopal, in reply, submitted that the purpose of linking bank accounts with the Unique Identification Number is to keep a check on instances of money laundering. He said that the deadline for linking existing bank accounts has already been extended to March 31, 2018. In respect of new bank accounts also, it is sufficient if the holders merely apply for Aadhaar card and submit the application number. He further hinted that even for SIM cards, the deadline for Aadhaar linkage could be extended to March 31, 2018 from February 6, 2018, as it stands at present