In its counter affidavit in the Supreme Court in the Lokniti Foundation v Union of India case, the Union of India through attorney general Mukul Rohatgi has stated that an Aadhaar number is currently not required for obtaining a new telephone connection.

In the attorney general’s submission – which has been reproduced in a February 6 order of the two-judge bench headed by the chief justice of India (CJI) – it is stated that “currently Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection”.

The proper wording of Rohatgi’s submission and the Supreme Court’s order are important in light of the poor media reporting of the case last week.

The headline for a Times of India article, for instance, was “SC asks Centre to link all mobile numbers to Aadhaar within one year”. This is incorrect.

While disposing of the case, the division bench also observed, “In view of the factual position brought to our notice during the course of hearing, we are satisfied, that the prayers made in the writ petition have been substantially dealt with, and an effective process has been evolved to ensure identity verification, as well as, the addresses of all mobile phone subscribers for new subscribers. In the near future, and more particularly, within one year from today, a similar verification will be completed, in the case of existing subscribers.”

In its petition, Lokniti Foundation, had prayed that “The Aadhar Card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers that can ensure 100% verification of mobile phone.”

However, pursuant to the attorney general’s submission, it appears that the bench has decided to not purposefully violate the constitution bench’s order that keeps getting a biometric UID/Aadhaar number voluntary (although some concerns have been raised whether it does condone the mandatory usage of Aadhaar at a later date).

Previous court directives

This ‘voluntary Aadhaar’ position has been repeated by the Karnataka high court in an order dated February 10, 2017. Prior to this, the chief justice-headed division benches of the Jammu and Kashmir high court and Andhra Pradesh high court have passed orders saying Aadhaar cannot be made mandatory. In a standout case, a Punjab and Haryana high court bench headed by then Chief Justice A.K. Sikri (currently a judge of the Supreme Court) heard a matter challenging a circular making Aadhaar mandatory. The moment the court raised questions of laws, the circular making Aadhaar mandatory was withdrawn by the central government. Notably, in 2013, the West Bengal Assembly passed a unanimous resolution against Aadhaar number-related schemes in public interest.

With the Lokniti order, the current CJI-headed division bench made a slight departure from its observation on January 5, 2017, wherein a CJI-headed three-judge bench including Justice N.V. Ramana and Justice D.Y. Chandrachud observed that there was no urgency in setting up a constitution bench as per the request of a CJI-headed five-judge constitution bench including Justice M.Y. Eqbal, Justice C. Nagappan, Justice Arun Mishra and Justice Amitava Roy. The order of the five-judge constitution bench had read: “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.” Although more than 15 months has passed, the five-judge constitution bench’s order remains unfulfilled. T

his order puts it on record that “this Bench is constituted only for the purpose of deciding the applications filed by the Union of India seeking certain clarification/modification in the orders passed by a Bench of three learned Judges of this Court dated 11.08.2015.”

It is germane to note that this August 11, 2015 order of a three-judge bench of Justices Chelameswar, S.A. Bobde and Nagappan observed, “we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches.” Its order reads: “By a reasoned order, the matters are referred to a Bench of appropriate strength.” It further said, “The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card; The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen.”

The order dated October 15, 2015, passed by the CJI-headed five-judge constitution bench of Supreme Court in the ‘UID/Aadhaar’ matter, reads: “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013. 5. 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 a related case, the Unique Identification Authority of India (UIDAI) Vs Central Bureau of Investigation (CBI), the apex court passed an order dated March 24, 2014, which reads as follows: “More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith. Tag and list the matter with main matter i.e. WP (C) No. 494/2012.”

This order in the UIDAI vs CBI case is part of the “all the earlier orders passed by this Court” which is required to be followed “strictly”. It is quite evident that repeated court orders issued till February 6, 2017 make it clear thatAadhaar remains voluntary. Therefore, no one can be mandatorily asked to produce biometric Aadhaar for anything.

The facts relevant to the current ‘voluntary or mandatory’ status of Aadhaar are as follows:

Aadhaar cannot be made compulsory because of orders of the CJI-headed five-judge constitution bench Supreme Court; Passage of the Aadhaar Act by parliament does not automatically imply that any agency can make Aadhaar compulsory and disregard court orders Even after the Aadhaar Act 2016 came into force, the Aadhaar card cannot be made compulsory unless the Supreme Court waives its order on request from the Union of India. This is more crucial given the fact the division bench of the court has reiterated the constitution bench order on September 14, 2016, which has in turn been relied on by the chief justice-headed division bench of Jammu and Kashmir high court to stay the biometric Aadhaar-enabled attendance system for government officials.

Continuing violations

While the attorney general admits in the affidavit filed on behalf of the Union of India that Aadhaar is not currently mandatory for employee attendance in government organisations, some 639 organisations have registered over 1.88 lakh employees, using over 5,000 active biometric devices in contempt of the Supreme Court’s order. This has been revealed by a government document titled ‘Aadhaar: Dynamics of Digital Identity’. The court reiterated its order on September 14, 2016 after the passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 underlining the fact that the order is the fact that the last order of the Supreme Court is the law of the land.

A three judge-bench headed by the CJI also expressed concern about the collection of biometric data by private and foreign agencies on January 5, 2017.

The Aadhaar enrolment process continues to promise Indian residents that “Aadhaar enrolment is free and voluntary.”

However, in blatant disregard of the Supreme Court’s directions, the finance ministry has communicated a ‘common strategy’ to be adopted by banks to achieve specific targets under Aadhaar seeding in mission mode. The department of financial services has fixed timelines for achieving 100% Aadhaar seeding of all the accounts. Common strategies to be adopted by all banks has also been communicated. The Centre has said that Aadhaar will be used as an identifier for all centrally-funded scholarship schemes and the amount will be directly transferred to an Aadhaar-linked bank account. Hence, schools have also been directed to collect Aadhaar details and send the same to concerned bank branches. All banks have been requested to seed the Aadhaar details received from schools on a priority basis. This violation of the Supreme Court’s order is recorded in the minutes of a state level bankers’ committee in Puducherry convened by the Indian Bank.

Notably, the existing legal provisions as per the Supreme Court’s order and the Aadhaar Act 2016 do not provide for seeding of Aadhaar with any scheme or project.

It is instructive to observe that the Election Commission (EC) is the only agency that has complied with the Supreme Court’s orders in letter and spirit. There is a compelling logic for the court to consider passing an order directing government departments to follow the EC’s template. The EC revised its order dated February 27, 2015 on August 13, 2015. Its revised order reads: “All further activities relating to collection/feeding/seeding of Aadhaar number being undertaken currently under NERPAP shall be suspended with immediate effect till further directions from the commission. In other words, henceforth no more collection of Aadhaar numbers from electors or feeding/seeding of collected Aadhaar data shall be done by any election authority or officials connected with the NERPAP [National Electoral Rolls Puriﬁcation & Authentication Programme].”

The list of violations, however, is never-ending. The UIDAI webpage indicates that it has ignored the requirement to give widely announce in the electronic and print media, including radio and television networks, that it is not mandatory for a citizen to obtain an Aadhaar number.

Those who wittingly or unwittingly promote the biometric profiling based 12-digit Aadhaar number must remember that the old maxim, ‘If you have nothing to hide, you have nothing to fear’ has been given a very public burial. This has been thoroughly debunked. Its assumptions depend on the existence of a benign and caring government and its implementation is based on the existence of an entity that can securely withhold information amidst massive governmental and non-governmental pressures.

By now, it is clear that the Supreme Court’s orders are being violated with impunity in the case of the world’s biggest biometric database by every conceivable government entity.

The views of the National Human Rights Commission (NHRC) views in the matter of the National Identification Authority of India (NIAI) Bill, 2010 (Aadhaar Bill), reveal that the biometric authentication scheme has a number of dangerous ramifications. NHRC’s view on the “need for protection of information”, “the possibility of tampering with stored biometric information” and “disclosure of information in the interest of national security” has been ignored. Citizens groups have been demanding scrapping of Aadhaar-related schemes to safeguard fundamental rights and national security.

The February 6 position of the division bench and the Union of India is in compliance with the order of the three-judge bench and the five-judge constitution bench, and complies with “institutional integrity and judicial discipline” invoked by the Justice Chelameswar bench and the CJI-headed constitution bench. While it can be safely inferred that the hearing by CJI-headed three-judge bench on January 5, 2017 was not done by a bench of appropriate strength (given the fact that attorney general had approached the constitution bench for relief because no other bench were deemed appropriate to hear the matter), the hearing by the division bench on February 6, 2017 is compliant with “institutional integrity and judicial discipline”. Notably, the Supreme Court’s website continues to refer to writ petition (civil) 494 of 2012 and related cases under the subject category ‘five judge benches matter’. This makes it abundantly clear that the Supreme Court’s registry has not complied with the order of the Justice Chalmeshwar-headed bench wherein it observed, “We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.”

There is still hope that a Supreme Court constitution bench will be set up before it is too late. This is urgently required to arrest the attempts underway to impregnate the term biometric identification and ‘surveillance’ in such a way that it begins to mean ‘cooperation, partnership, and consultation’, as per the official dictates of international financial and military institutions.

Meanwhile, following the attorney general’s submission in the Supreme Court recorded in the February 6 order stating that Aadhaar is not mandatory for telephone connections, keeping the orders of several high courts in mind and pursuant to the revised order of the EC, there is a logical legal obligation for government and non-governmental agencies who are implementing Aadhaar-related schemes and systems to use the order of the EC as a template to revise their orders and circulars to comply with the court’s order in letter and spirit.

Gopal Krishna is a member of the Citizens Forum for Civil Liberties (CFCL). CFCL had appeared before the Parliamentary Standing Committee on Finance that examined the Aadhaar Bill, 2010. His doctoral thesis is on corporate crimes, public institutions and their accountability.