Aadhaar Can’t Be Insisted Upon For Any Service Except Subsidies: Supreme Court

The Supreme Court on Tuesday indefinitely extended the March 31 deadline for linking Aadhaar to bank accounts and mobile phones and ordered that except for disbursing subsidies, the Centre and states cannot insist on Aadhaar for any service, including issuance of passports. The extension will be in place till the court delivers its final judgment.

Chief Justice Misra remarked that it had enough of such “piecemeal” notifications and legislations issued by the government to link one service or the other. He said it was time the court stepped in and stopped passing interim orders extending the deadline. There should be a sense of certainty that citizens would not be harmed or their services would not be curtailed even as the very Aadhaar scheme is under the apex court’s microscope.

A five-judge constitution bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, which is in the midst of hearing a bunch of petitions challenging the constitutional validity of Aadhaar, indefinitely extended the March 31 deadline it had set through its interim order on December 15 linking services to possession of the unique identity number.

On December 15, 2017, the Bench extended the Aadhaar linking deadline from December 31, 2017 to March 31, 2018.

Identical to 2017 interim order

The March 13 order is more or less identical to the interim order passed on December 15, 2017 except for the fact that March 31, 2018 continues to be the deadline for linking Aadhaar to subsidies, benefits and services prescribed under Section 7 of the Aadhaar Act of 2016.

Despite submissions made by senior advocate Shyam Divan and advocate Vipin Nair that the indefinite extension of the deadline should include all services, including those under Section 7, the court restricted its relaxation of the deadline to services outside Section 7.

Section 7 of the Aadhaar Act says that the Centre and State governments can insist on Aadhaar “for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from the Consolidated Fund of India”.

To undergo authentication to access services under Section 7, an individual has to either produce his Aadhaar card or Aadhaar enrolment application.

Lawyers for the petitioners hint that the court may have excluded Section 7 benefits from the extension because it is statutorily protected by the Aadhaar Act itself, whereas the other linkings like PAN, mobile phones, etc., are based on other statutes or even executive notifications.

The fact that time is running out for linking Aadhaar and citizens should not be left in a state of uncertainty was highlighted by one of the judges, Justice D.Y. Chandrachud, on the Aadhaar Constitution Bench itself.

‘We cannot let this state of uncertainty prevail…’

“We are dealing with the entire financial system… We cannot let this state of uncertainty prevail… We cannot tell them, like on March 27, whether the deadline is extended or not… A banker cannot be expected to seek compliance from customers within seven days,” Justice Chandrachud addressed Attorney-General K.K. Venugopal during a hearing on March 7.

On March 13, matters reached a peak when advocate Vrinda Grover moved the Supreme Court against the linking of tatkal passport service to Aadhaar. Senior advocate Arvind Datar, on behalf of Ms. Grover, said she was asked to come back with her Aadhaar number, which she did not possess, in case she wanted her passport.

Justice Chandrachud pointed out the fact that a nine-judge Constitution Bench on August 24, 2017, recognised and upheld privacy as a fundamental right and intertwined it with basic human dignity and right to life.

This verdict has made it all the more important that the question of whether Aadhaar is constitutional or not be resolved by the five-judge Bench at the earliest, Justice Chandrachud observed.

The petitioners challenging Aadhaar argue that the scheme, which requires the parting of biometric and personal details, is a coercive step and a stark violation of the ordinary citizen’s fundamental right to privacy. The danger to privacy, they argued, is all the more significant because India does not have a data protection regime to prevent or punish personal data leakage.