THE legal challenge to making it mandatory for Indian citizens to part with their demographic and biometric information and assigning them unique identity numbers ostensibly to ensure efficient delivery of subsidies, benefits and services under the Aadhaar Act, 2016, has witnessed several twists and turns.

In Round One, the public interest litigation petitioners—including a former High Court judge, a retired major general and an activist espousing the cause of manual scavengers—who challenged the Act’s previous avatar, the Aadhaar scheme, succeeded in persuading the Supreme Court to confine the voluntary use of Aadhaar to six specified schemes. That was on October 15, 2015, when a five-judge Constitution Bench modified the previous order of a three-judge bench in August that year to accommodate the Central government’s growing appetite for including more and more schemes under the Aadhaar umbrella even though the Supreme Court’s larger bench was yet to adjudicate on its very constitutionality.

Round Two: wherein the Supreme Court found itself unable to go ahead and adjudicate on the issue expeditiously and, therefore, has been prevaricating since October 2015. The balance of advantage appeared to tilt increasingly in favour of the respondent in the case, the Union of India, which began to brazenly violate the Supreme Court’s restrictions on making Aadhaar mandatory and still manage to avoid the kind of strictures that an ordinary litigant not complying with the court’s directives could expect in the normal course of events.

Thus, when the media reported on March 27 that the Supreme Court had held that the non-mandatory restriction on the Aadhaar scheme in the October 15, 2015, order applied to social welfare and benefit schemes and did not apply to non-welfare activities such as filing of income tax returns or verification of mobile phone connections, it came like a bolt from the blue. These observations, attributed to Chief Justice of India (CJI) J.S. Khehar in the course of the judicial proceedings on the Aadhaar case, are not binding judicial orders. The CJI made them because he had not heard these petitions earlier and, therefore, sought to gain familiarity with them. (See box.)

The Constitution, in theory, endows the CJI only with symbolic powers. At his swearing-in ceremony, he takes the same oath that is prescribed for the other judges of the Supreme Court, thus marking him as the first among equals. However, as the administrative head, the CJI enjoys a certain discretion in deciding which of the pending cases need to be heard on priority and who among his brother or sister judges can hear and decide them. Therefore, when the CJI refuses to accord priority to a pending matter, though his predecessors have emphasised the need to hear it expeditiously, it makes one wonder whether the CJI, on the administrative side, is not bound by the rule of precedent.

Previous orders

On August 11, 2015, a three-judge bench of the Supreme Court found a strong prima facie case made by the petitioners in the K.S. Puttaswamy case and passed an interim order restricting the use of Aadhaar to two schemes. The production of an Aadhaar card would not be a condition for obtaining any benefit otherwise due to a citizen, the bench had categorically held in that order. More important, while referring the question whether right to privacy was a fundamental right to a larger bench for consideration, the three-judge bench said: “Having regard to importance of the matter, it is desirable that the matter be heard at the earliest.”

Thereafter, the five-judge Constitution Bench held in Paragraph 5 of its Interim Order of October 15, 2015: “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.” In Paragraph 8, the same bench held: “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a bench for final hearing of these matters at the earliest.” Specifically, the order restricted the use of the Aadhaar number to six schemes (adding four more to the two already identified by the three-judge bench in August 2015), namely, public distribution system (PDS), subsidised LPG cylinder, Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (old age pensions, widow pensions and disability pensions), Prime Minister’s Jan Dhan Yojana, and Employees’ Provident Fund Organisation. Even in these six schemes, enrolment for Aadhaar can only be voluntary, the order was categorical. However, the Central government issued a series of notifications making it mandatory for purposes other than those permitted by the court.

Notifications since October 2015

The Union Ministry of Micro, Small and Medium Enterprises made it mandatory for MSMEs to register online through Udyog Aadhaar from October 20, 2015, within five days of the Supreme Court’s interim order.

From June last year, scholarships under the University Grants Commission began to be restricted to Aadhaar card holders or those who had enrolled for it. In a public notice dated January 31, the Central Board for Secondary Education (CBSE) insisted on Aadhaar for National Eligibility cum Entrance Test-2017 aspirants. The Railway Recruitment Board made it mandatory for its examinations from December 23 last year. The CBSE has insisted on it for its Joint Entrance Examination from this year.

Candidates for the Uttar Pradesh State Entrance Examination were required to furnish Aadhaar numbers from this year. The Andhra Pradesh Engineering, Agriculture, and Medical Common Entrance Test was also restricted to Aadhaar card holders from last year. From last year, the results of the 10th and 12th class examinations conducted by the Bihar State Education Board are stored in a digital locker that is accessible only with the use of the Aadhaar number.

The Ministry of Railways made it mandatory for advance verification of senior citizens through Aadhaar from April 1 to get concessional tickets. The Ministry of Human Resource Development (MHRD) made it mandatory for the national means-cum-merit scholarship scheme and for the National Scheme of Incentive to Girls for Secondary Education from February 16 last year. It made it mandatory for the Central Sector Scheme of Scholarship for College and University Students from February 17 last year. In January this year, Aadhaar enrolment became mandatory under the National Food Security Act (under the PDS) and the Employee Pension Scheme. On February 28, the MHRD issued a notification making it mandatory from June 30 for students who want to avail themselves of the mid-day meal scheme in schools. It issued similar notifications for the beneficiaries of the Saakshar Bharat and Sarva Shiksha Abhiyan schemes it runs. On February 16, the Ministry of Social Justice and Empowerment made it mandatory for people who want to avail themselves of the central scholarship from March 31. Beneficiaries of the National Action Plan for Skill Training of Persons with Disabilities and of the Scheme of Assistance to Disabled Persons for Purchase/Fitting of Aids and Appliances were also mandatorily required to enrol for Aadhaar. The Ministries of Health and Family Welfare, Labour and Employment, and Women and Child Development followed suit, restricting access to their schemes to the Aadhaar-enrolled.On February 15, the Ministry of Personnel, Public Grievances and Pensions made it mandatory for four schemes under it. Section 139AA of the Income Tax Act, 1961, as amended by the Finance Act, 2017, provides for mandatory quoting of Aadhaar/enrolment ID of Aadhaar application form to file income tax returns and to make an application for allotment of a permanent account number (PAN).

Simplification of the delivery process, transparency and efficiency, receipt of entitlements in a convenient and seamless manner, and obviating the need to produce multiple documents to prove one’s identity are the objectives behind insisting on Aadhaar, as stated in many of these recent government notifications making it mandatory for people who want to avail themselves of government schemes. But in practice, these stated goals appear to be vacuous and irrelevant, if not counterproductive, to the intended beneficiaries of these schemes. Even private enterprises have apparently begun to use the Aadhaar platform for the purpose of verifications and authentication.

Mobile subscriber verification

The outcome of a public interest litigation petition seeking to make verification of mobile subscribers mandatory was an instance of how a three-judge bench of the Supreme Court dealt with the Aadhaar issue oblivious of the five-judge bench’s earlier ruling. On February 6, the three-judge bench headed by Chief Justice Khehar disposed of the petition, filed by Lokniti Foundation, expressing its hope that by using the Aadhaar platform for verification of SIM cards the government would be able to verify the identity of all mobile subscribers in the country within a year. The bench was obviously unaware of the fact that on October 15, 2015, the five-judge Constitution Bench expressly rejected the plea of the Telecom Regulatory Authority of India (TRAI) seeking permission to use the Aadhaar platform for e-KYC (Know Your Customer) verification of SIM cards. However, TRAI had no compunctions about launching the Aadhaar-based e-KYC for mobile connections on August 16 last year, though that amounted to contempt of the Supreme Court’s orders. Attorney General Mukul Rohatgi, who briefed the bench on the issue, apparently omitted to explain the relevance of the October 15 interim order in the Aadhaar case.

Major General (retd) S.G. Vombatkere submitted a petition contending that under Part III and Part IV of the Constitution a citizen is entitled to enjoy various social and civil rights such as right to receive education, a scholarship, medical assistance, pensions and benefits under government schemes without having to part with his or her personal biometrics and personal information. He averred that Article 19(1)(a) of the Constitution not only protected a citizen from restraint on free speech but also from “compelled speech”, that is, the compulsion to give or disclose details that the citizen otherwise did not want to disclose. Relying on the Unique Identification Authority of India’s own data, one can point out that the number of cases where deduplication resulted in the rejection of an application for an Aadhaar number is to the tune of nine crore out of around 99 crore enrolments. As this means that every tenth person who applied for an Aadhaar number is not issued one because of the flawed biometric technology being used, petitioners have asked whether Aadhaar is an instrument of exclusion to deprive people who are otherwise entitled to financial and other subsidies, benefits and services from receiving these entitlements.

One of the issues that the petitioner wanted to bring to the court’s notice was that a number of below poverty line card holders and MGNREGA workers from Rajasthan had come forward and stated the troubles they had faced because of the faulty Aadhaar system, including not being able to get Aadhaar or to authenticate oneself and connectivity issues during authentication.

It is interesting to note that on September 14 last year a two-judge bench of the Supreme Court, in All Bengal Minority Students Council and Anr vs Union of India and Ors, reiterated that Aadhaar could not be made a mandatory condition for any government scheme. The bench restrained the Centre from making Aadhaar number a mandatory requirement for the purpose of grant of scholarships. This is a significant order as it was delivered after Parliament enacted the Aadhaar Act, and it had come into force. While hearing a petition from G.S. Sukanya on February 10, the Karnataka High Court granted an interim stay on the mandatory requirement of Aadhaar card for getting rations. “The respondents shall disburse ration to which she is entitled even without production of Aadhaar card,” Justice A.S. Bopanna directed in his order.

The passage of the Aadhaar Act as a Money Bill in the Lok Sabha has been challenged in the Supreme Court, which has decided to hear the petition filed by former Union Minister Jairam Ramesh. A Bill can be correctly termed a “Money Bill” under Article 110 of the Constitution if it contains only provisions dealing with all or any of the matters specifically enumerated in clauses (a) to (g) of Article 110 (1). This provision deals with matters relating to expenditure incurred or income received with respect to the Consolidated Fund of India. Experts have pointed out that the Aadhaar Act deals with several issues that fall outside the limited scope of Article 110. On this ground alone, they say that the Act is ex facie unconstitutional, illegal and liable to be struck down by the Supreme Court.

Serious issues

The challenges to the Aadhaar Act raise serious issues, which are awaiting resolution by the Supreme Court.

One is whether it is constitutionally permissible for the state to make the discharge of its constitutional and statutory obligations conditional upon an individual parting with his or her core biometrics. As one petitioner before the court put it: “The Aadhaar Act inasmuch as it foists a Faustian bargain on every citizen and resident is unconstitutional and deeply flawed at its very foundation.” The state’s obligation to provide financial and other benefits, subsidies and services extends to a class of citizens or residents on the basis of certain objective criteria such as household income, gender, age and disability. Persons falling within this group, for short “entitled persons”, form a single homogenous class. Each one of them is entitled to one or more benefits in the form of financial subsidies, services, scholarships, and so on. Whether or not an individual parts with his/her core biometric information to avail himself/herself of the entitlements is completely irrelevant to his/her receiving the entitlement, the petitioners say. The Act is palpably arbitrary and illegal inasmuch as it creates an artificial impermissible classification between those entitled persons who have parted with biometrics and those entitled persons who have not parted with biometrics. This is a serious flaw and, therefore, can be held violative of Article 14 of the Constitution, which guarantees equality before the law and equal protection of the laws.

Another aspect of the challenge to the Act is that it makes Prime Minister Narendra Modi’s campaign promise of ensuring minimum government and maximum governance once he came to power ring hollow.

A key facet of the constitutional role of the state is that it is a benign and benevolent state and not a police or authoritarian state. This aspect of a benevolent state is clearly derived from the Independence movement, the constitutional history leading to the framing and adoption of the Constitution of India, and the Preamble to the Constitution by which the people of India have given themselves the Constitution. A direct obligation on the state that flows from this is that it must act in recognition of its limited role and is under an active constitutional duty to preserve and protect the fundamental rights of citizens. This implies that the state cannot enact a law or create a system that by its very design and operation will place the state in an extremely dominant position in relation to every citizen. The state is under an obligation under Article 13(2) of the Constitution to ensure that it shall not make any law that takes away or abridges the rights conferred under Part III of the Constitution. The Aadhaar Act purports to provide legal sanction to a programme that lays the framework for and enables real-time surveillance of every Indian. Constitutional limitations are such that the government cannot engage in surveillance of citizens even when each of these citizens volunteers to be subject to surveillance, petitioners have claimed. As a person has full dominion and control over her core biometrics, just as she has over her body and personal autonomy, any collection of personal biometrics can only be done through free and informed written consent on the part of the individual.

The Act purports to validate actions taken before the Act was brought into force in terms of Section 59 of the Act. But no consent whatsoever was taken for any of the enrolments carried out until the bringing into force of the Act, the petitioners have pointed out. The taking of a person’s fingerprints and iris scan without informed consent is a physical invasion of his or her bodily integrity, they claim. The element of free consent is not addressed or adequately protected in the impugned Act even with respect to enrolments subsequent to the Act coming into force, they have pointed out.

While engaging in the exercise of collecting biometrics, the government acts as a trustee at every stage. The role of a trustee, given the sensitive nature of the information, must be exercised by the state or organs of the state alone and cannot under any circumstance be delegated to private parties operating without any governmental supervision. The crucial stage of obtaining consent/informed consent is entirely in the hands of private players under the impugned Act, and this has been questioned by the petitioners as against the principle of trusteeship.

On April 5, the Supreme Court decided to set up a five-judge Constitution Bench to hear from April 18 the petition accusing WhatsApp and Facebook of privacy violations. Although the court’s according priority to hear the WhatsApp case first is a disappointment of sorts to those who expected the Aadhaar case to be heard first, observers have expressed surprise that the two cases have not been tagged as both have raised the issue of privacy.

However, there is a silver lining in the court’s announcement. If the privacy issue is resolved first in the WhatsApp case, the court is likely to give a definite ruling on whether the right to privacy is a fundamental right, the very question that the three-judge bench in the Aadhaar case referred to a larger bench in August 2015. Therefore, the outcome of the WhatsApp case could give us some idea about the future of Aadhaar.