CJI orally assures setting up of larger Bench next week to hear Aadhaar-related cases

Attorney General of India K.K. Venugopal on Thursday 7 submitted before the Supreme Court that the government intends to issue a notification on December 8, extending the deadline for mandatory linking of Aadhaar with services from December 31 to March 31, 2018.

This extension would include 139 government subsidies, benefits or services, which are funded out of the Consolidated Fund of India as per Section 7 of the Aadhaar Act of 2016. The deadline for Aadhaar linkage for these services is currently December 31, 2017.

The extension would, in all likelihood, include the mandatory linking of Aadhaar with bank accounts. Government lawyers in the Supreme Court said the extension of the deadline to March 31, 2018 in the case of Aadhaar-bank accounts linkage may be done in the next few days as this involved consultations with the Reserve Bank of India. So far, private citizens run the risk of being locked out of access to their own bank accounts if they do not link them with Aadhaar by December 31.

Mr. Venugopal apprised a Bench led by Chief Justice of India Dipak Misra that the extension, however, does not include the linking of mobile phone numbers with Aadhaar. The deadline for this is February 6, 2018.

Judicial order

He said it would require a judicial order from the Supreme Court itself to extend the deadline to March 31, 2018. This is because the government is complying with a February 6, 2017 order of the court in the Lok Niti Foundation case to tighten up the verification process of mobile phone users through Aadhaar linkage, citing national security.

Mr. Venugopal's submissions came on an urgent mentioning made by advocates P.B. Suresh and Vipin Nair, joined by senior advocate Shyam Divan, for petitioners for an early hearing of their batch of petitions challenging the constitutionality of the Aadhaar scheme.

Chief Justice Misra orally assured them that a Constitution Bench would hear them next week on the question of providing interlocutory reliefs. He indicated that it would be left to the Bench to give dates for the final hearing of the petitions.

Mr. Divan has pressed for dates in the first or second week of January, immediately after Christmas holidays. He submitted that the government should promise that no coercive steps would be taken by the government or its agencies against Aadhaar holders till the court takes a final decision on the validity of the Aadhaar scheme.

Mr. Venugopal said, “If that is the case, nobody will produce it [Aadhaar]. We have said that those with Aadhaar do not mind producing their Aadhaar.”

Also Read No SC stay on Aadhaar linking to services: UIDAI

'Govt. stand ambiguous'

Mr. Divan said the government’s stand was increasingly ambiguous on the plight of Aadhaar holders, who do not want to link their Aadhaar. He urged the court to address this issue immediately next week.

Mr. Venugopal said the government was equally ready to argue the point.

So, the focus of the hearing next week may likely be on the status of existing Aadhaar holders and whether the extension of the deadline would in effect confine to non-Aadhaar holders only.

Advocate Zoheb Hossain, who assists Mr. Venugopal, said there were “different regimes”. That is, the government presumes that existing Aadhaar holders would not mind linking their bank accounts. Moreover, banks may even insist on Aadhaar for opening a new account, and existing Aadhaar holders would have to produce the document.

Panel report by February

Mr. Venugopal said the Data Protection Committee, led by Justice Srikrishna, would submit its final report on sprucing up the Aadhaar Act to make it safe from data theft by February 2018.

The Aadhaar petitions are in limbo in the Supreme Court since 2014.

The mentioning on Thursday immediately follows a Constitution Bench wrapping up the Centre-Delhi government power tussle over the administration of the National Capital. The petitions have been challenged Aadhaar as a violation of the fundamental right to privacy.

In October, the Centre joined forces with Mr. Divan for an early hearing of the Aadhaar cases. Mr. Venugopal said then that falsehoods were spread about Aadhaar linking, including how Aadhaar is a must for CBSE students to appear in Class 10 and 12 exams. A Constitution Bench may be set up to decide all the Aadhaar issues once and for all, he observed.

The decision to set up a Constitution Bench comes despite Justice Rohinton Nariman’s separate judgment in the nine-judge Bench declaring right to privacy as a fundamental right. The order directed that the Aadhaar petitions to be posted for hearing before the “original” three-judge Bench.

This ‘original’ Bench, led by Justice J. Chelameswar, had referred the petitions for hearing before a five-judge Bench, ehich found it necessary to first decide whether privacy was a fundamental right or not before hearing the Aadhaar petitions. It referred the legal question to a nine-judge Bench, which came out with the historic judgment in favour of the common man’s fundamental right to privacy against State intrusions.

The nine-judge Bench verdict has a crucial bearing on the Aadhaar petitions, which argued that Aadhaar’s use of biometric details like fingerprints and iris scans violate bodily and informational privacy.

The petitioners argue that mandatory requirement of Aadhaar for these schemes “constrict rights and freedoms, which a citizen has long been enjoying unless and until they part with their personal biometric information to the government”.

The petitions have termed the Aadhaar Act of 2016 unconstitutional and contrary to concept of limited and accountable governance.