Project Of Defiance
Governments are making Aadhaar mandatory in contravention of court orders

Written by Apar Gupta
<> , Prasanna S
<> | Updated: January
13, 2017 12:36 am
[image: aadhar, aadhar card, aadhar project, mandatory aadhar, india news,
latest news]The Supreme Court has passed a series of interim orders to
prohibit the imposition and limit the application of Aadhaar.

One reason for the controversy surrounding the Aadhaar project is the
pending litigation against it in the Supreme Court. The cases draw on
substantive critiques, including exclusion and deprivation caused by the
usage of Aadhaar in provisioning essential services such as the PDS and
MGNREGA, breaches of individual privacy and threats to national and
individual security in the way the project has been conceived and
implemented. Such concerns are not pure policy matters but interact with
constitutionally protected fundamental rights, including Articles 14, 19
and 21 of the Constitution.

The Supreme Court has passed a series of interim orders to prohibit the
imposition and limit the application of Aadhaar. However, concerns as to
the compliance of such orders has been rising as various government
ministries, departments and other statutory bodies continue to link Aadhaar
to the provision of services — in many instances, even making it mandatory.
In any litigation, the interest of a court is in ensuring that its final
judgement is implemented in letter and spirit. Such determinations take
time and a common method to ensure compliance is by preventing parties from
disturbing the subject matter of the litigation. Acting on these
well-established legal principles, the SC has passed a series of orders on
the Aadhaar project as it continues to consider the petitions.

In August 2015, the court issued a set of directions making it clear that
Aadhaar was not a precondition for the delivery of any state benefits and
further limiting its use to PDS schemes. Aadhaar was directed to be
optional, and even such voluntary use was allowed only for the distribution
of foodgrains and cooking fuels. Such a restraint was passed after the
Union government took a stand that the constitutional basis of the right to
privacy did not clearly emerge in case law. Acting on this, the court
referred the Aadhaar petitions to a larger bench. Such a bench has yet to
be constituted with the larger Aadhaar case hanging in the balance.

During the pendency of the case, two significant events occurred. On
October 15, 2015, 11 state governments and institutions went back to the SC
seeking permission to use Aadhaar beyond PDS schemes. The court agreed to
relax its order but limited the use of Aadhaar to four schemes, in addition
to PDS and cooking fuel allowed by the earlier order. It again clarified
the use of Aadhaar would be, “purely voluntary” even while Aadhaar is used
in these schemes. Then, on March 16, 2016, the Aadhaar (Targeted Delivery
of Financial and Other Subsidies, Benefits and Services) Act, 2016 was
passed, having been rushed through Parliament as a money bill. Given that
the Aadhaar scheme operated on the basis of a executive notification till
such date, some claimed the Aadhaar Act filled in a legislative vacuum.
Others criticised it on process and substance. Such concerns have given
rise to two petitions challenging the constitutional validity of the
Aadhaar Act which the court has agreed to hear, but it will have to wait
till the larger question of the right to privacy is decided. Hence,
compliance with the interim directions becomes vital.

Irrespective of such challenges, many state institutions have started
demanding Aadhaar as a precondition (mandatory, not voluntary) for services
(beyond the five permitted schemes). For instance, the joint entrance
examination notification for the IIT competitive exam requires compulsory
online registration through Aadhaar. A subsequent clarification makes a
reference to the Aadhaar Act to purportedly clothe this imposition with an
appearance of legality.

This creates doubt on the restraint put by the SC when none should exist.
The Aadhaar Act does not have a provision that excludes or nullifies
existing orders. On the contrary, there is language in the Act that
suggests continuity with the earlier legal arrangement. Even otherwise, a
order on September 14, 2016, stayed the imposition of Aadhaar in three
scholarship schemes, thereby indicating that the Aadhaar Act does not
materially alter the SC’s past orders.

The state’s measures have elements of coercion that undermine individual
choice and rights guaranteed under the Constitution. Observance of the
interim orders of the Court are better suited to the government for
maintaining a healthy, respectful relationship with the judiciary branch.
Disregarding them portends a worrying prospect of undermining the authority
of the Supreme Court.

The writers are lawyers for petitioners in the Aadhaar cases before the
Supreme Court

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