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Mandatory Aadhaar: Govt has gone against SC, privacy remains the only issue

Vishakh Unnikrishnan | Updated on: 23 September 2016, 11:27 IST

With the passage of the Aadhaar Act as a Money Bill in March, the government scuttled the Supreme Court's October 2015 order that Aadhaar could not be made compulsory.

The Supreme Court had made it clear that Aadhaar could not be made mandatory, and could only be 'extended' to services like transfer of cooking gas subsidy, Jan Dhan Yojana, and the Mahatma Gandhi National Rural Employment Guarantee Act on a voluntary basis.

The court had also ordered the government to "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", and that "production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen".

The government, however, has been flouting the apex court's order ever since.

On 12 September 2016, the government notified sections under the Aadhaar Act, thus providing legal backing for its use in various government schemes.

No hearings on Aadhaar

With this move, the legal battle over Aadhaar in the Supreme Court has got restricted to the issue of privacy.

The petitioners in the case involving privacy had challenged the unique identification (UID) number used to collect information from individuals, and contested that sharing such data would be a violation of the right to privacy.

The matter was subsequently referred a Constitutional Bench on 11 August 2015. But even a year later, the Bench is yet to be constituted.

There are a number of petitions still pending with the Supreme Court challenging the validity of Aadhaar, both with respect to privacy, and whether it helps avoid pilferage in the disbursement of government schemes like the public distribution system.

These petitions were placed before the Supreme Court way before the Act was passed and notified, but were never heard. Around seven such petitions still lie with the Supreme Court.

The petition concerning the matter of privacy was also referred to the Chief Justice of India on the grounds of "institutional integrity and judicial discipline". But not a single hearing has been held.

However, on 14 September, the Supreme Court reiterated its stand, stating that "production of an Aadhaar card will not be a condition for obtaining any benefits otherwise due to a citizen". In the same order the Supreme Court, struck down government directions attempting to make Aadhaar compulsory for scholarship schemes.

The order, in turn, made it illegal for the government's proposed directions to make Aadhaar mandatory for a wide range of benefits and services, from pensions and scholarships to railway bookings and under the DBT scheme.

Cases where govt has flouted SC order

  • In Odisha, many state-run colleges professed their inability to disburse funds due to a sudden requirement of students having to share their Aadhaar numbers. Minister of state for tribal welfare, Sudam Marandi, informed the regional media that there was already a fully functional portal called Prerana that allowed for SC/ST students to avail their scholarships, and the money was directly transferred to their bank accounts. He also added that if Aadhaar were to be made mandatory, many students would be deprived of their dues.
  • In June, the Bombay High Court dismissed a public interest litigation, which sought to quash a 2015 Maharashtra government resolution, making it mandatory for children to submit Aadhaar details while securing school admission. The PIL had taken into account the Supreme Court's order, saying the state government's resolution to make Aadhaar mandatory was contradictory to the apex court's order. The HC's stance was in direct contrast to the SC's.
  • The Chief Minister of West Bengal, Mamata Banerjee, had also expressed her displeasure over the Centre's decision to make Aadhaar cards compulsory for scholarships. At a rally in August, she had said: "At least 800 villages in Bengal don't have banks. Over one crore people in Bengal don't have Aadhaar cards. How can they make it compulsory when one crore people in Bengal will not get pensions, subsidies or scholarships? Let them first set up banks before making Aadhaar compulsory."

Too late now

It might be too late now to debate the benefits of Aadhaar. A Cabinet Secretariat notification to all ministries reads that all subsidies and welfare schemes must be brought under Direct Benefit Transfer scheme by 31 March 2017.

Nikhil Dey, a social activist and one of the petitioners, says: "There is confusion because the government is not taking into account what the Supreme Court has to say. The government, whether it talks about students, subsidies or railways, talks about making Aadhaar compulsory. The government has the capacity to shove it down people's throats. The issue with Aadhaar is, the more marginalised you are, the more marginalised you become with Aadhaar."

Reetika Khera, an economist in the Humanities and Social Sciences department at the Indian Institute of Technology, Delhi, says: "Blissfully ignoring Supreme Court orders, the government is trying to create a fait accompli on Aadhaar. We are concerned that the court has not heard a series of petitions challenging the government's increasingly coercive approach. Further, the savings estimates which the government presented before the court to allow the use of Aadhaar in the PDS, NREGA, pensions etc, have been have challenged by the CAG and by independent researchers."

Edited by Shreyas Sharma

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First published: 23 September 2016, 11:27 IST
 
Vishakh Unnikrishnan @sparksofvishdom

A graduate of the Asian College of Journalism, Vishakh tracks stories on public policy, environment and culture. Previously at Mint, he enjoys bringing in a touch of humour to the darkest of times and hardest of stories. One word self-description: Quipster

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