#Debriefed:Will the courts halt the Centre’s push to make#Aadhaar compulsory?

The recent push by the central government in making Aadhaar mandatory for several government schemes has met with widespread criticism from various sections of the society, including activists, lawyers, policy professionals and journalists..Just yesterday, amendments were introduced in the Finance Bill, 2017 to make Aadhaar mandatory for filing of income-tax returns as well for obtaining and retaining the permanent account number (PAN)..And now, with the Bill being passed in its entirety in the Lok Sabha, the Centre’s intentions to make Aadhaar compulsory across the board – despite a Supreme Court order to the contrary – are fairly clear..The government quotes it as a measure that will improve the efficiency in functioning and weed out tax evaders; but there are several reasons why this move is not in the best interests of the citizens of this country, especially in the absence of a data privacy legislation..In this edition of #Debriefed, we break down the controversy surrounding Aadhaar..What is the concern about?.The mandatory requirement of Aadhaar for all sorts of things means there are over a billion Indians wandering around with, as quoted here by Devangshu Datta, their ‘digital pants off’..The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 gives not only the government but also various private institutions access to an individual’s biometric data every time he/she undertakes a transaction which involves the use of the Aadhar Card..The problem with Aadhaar is that it uses biometrics for identifying each individual using their fingerprints and iris scans. And the problem with biometrics is that they are irrevocable. With multiple ways available to fool fingerprint scanners, any breach could lead to a mass scale copy of biometrics available with unauthorised users, and there is literally nothing you can do about it, unlike theft of credit/debit card passwords which can be reset..In fact, there were recent reports suggesting that Unique Identification Authority of India (UIDAI), the central repository of the Aadhaar database, had lodged complaints regarding breach of their database. For a better perspective, between 14 July 2016 and 19 February 2017, as many as 397 biometric transactions were performed by one individual..What all is Aadhar mandatory for?.The bone of contention is Section 7 of the Act, which allows the government to make Aadhar mandatory for seeking subsidies under various government Schemes..Starting from financial year 2017-18, Aadhar will be mandatory for availing benefit under a host of central/state government schemes including (but not limited to):.Those desirous of availing scholarships and fellowships (including those with disabilities) under various government schemes, as well as children, teachers and contractual staff who fall within the ambit of the Sarva Siksha Abhiyaan.Various schemes for empowerment of women, including the Ujjawala Scheme which is aimed at protection, prevention and rehabilitation of those having suffered from sexual exploitation and trafficking;Pregnant mothers who are in need of cash transfer, free medicines, nutrients and dry ration; also for mothers to get free meals from Integrated Child Development Service centers;Farmers seeking to get their soil tested or avail subsidised fertilisers or any subsidy under a Central scheme (Soil health card scheme);Beneficiaries under the National Food Security Act, 2013 through Targeted Public Distribution System;Payment of pension to retired Defence Forces pensioners/Family Pensioners;Filing of income-tax returns as well for obtaining and retaining the permanent account number (PAN).A non-exhaustive list of schemes for which Aadhar has been made mandatory (along with notifications/circulars) can be found here..What’s wrong with making it mandatory?.Apart from the fact that it jeopardises our biometric details and the potential threat of its abuse, it has a lot to do about the ‘right to privacy’. And this right to privacy has been the subject of litigation before the Supreme Court..In July 2015, Attorney General Mukul Rohatgi had also argued that Indians don’t have a fundamental right to privacy..So do Indian citizens have a Right to Privacy?.The Indian Constitution does not explicitly mention the Right to Privacy as a Fundamental Right. While the contention put forward has been that a citizen’s right to privacy flows from Article 21, there have been conflicting judgments in Supreme Court decisions over the years. In fact, this was the primary reason the matter was referred to a Constitution Bench in August 2015..Is it being challenged on other grounds?.While several petitions were filed in the Supreme Court challenging the rollout of Aadhaar as being violative of one’s right to privacy, a writ petition has been filed by former union minister Jairam Ramesh challenging the constitutionality and legality of the treatment of this Act as a money Bill..It has, however, been argued by Attorney General Rohatgi that since the Aadhaar Act involves payment of subsidies through the consolidated fund of India, it qualifies the criteria laid out in Article 110 of the Constitution..What is the status of these petitions?.Even as the Centre continues to defy the apex court’s order, the main matter hasn’t come up before the Supreme Court in over a year. After having requested the Supreme Court for an urgent hearing of the matter on January 5 of this year, Chief Justice of India JS Khehar declined it “for the time being”..As far Jairam Ramesh’s challenge is concerned, in February this year, the court said it was “tentatively not convinced“ with the grounds taken by the Congress leader in challenging the Lok Sabha Speaker’s decision to certify a Bill to amend Aadhaar law as a money Bill. This case is also pending before the Supreme Court..Is the rollout of Aadhar legal?.No..The Supreme Court has time and again reiterated that use of Aadhaar is only voluntary and not mandatory. While the validity of Aadhaar as a scheme remains to be decided in law, the court has passed a several orders, saying Aadhaar is not mandatory. In September 2013, it said “no person should suffer for not getting the Aadhaar card”, and that it should be voluntary..The first modification was made in August 11, 2015, when a 3-judge Bench said the government could use Aadhaar for the public distribution system (PDS) and to distribute LPG cylinders. It was then ‘allowed’ to be used for a host of other central government schemes in October 2015, but of course only on a voluntary basis and not mandatory, an order which the government conveniently seems to ignore..After nearly one year, the Supreme Court again made it clear to the Centre that Aadhar cannot be a mandatory requirement for students seeking scholarship under the National Scholarship Portal..What have other courts held thus far?.The Jammu and Kashmir High Court, in October 2016, stayed the state government’s order making it mandatory for its employees to procure Aadhaar cards for biometric attendance in government offices, as did the Andhra Pradesh High Court..The Calcutta High Court in December 2016 held that Aadhaar Card is not a proof of citizenship and stated that “Aadhaar Card by itself shall not confer any right of or be proof of citizenship or domicile in respect of the holder thereto”..The Karnataka High Court last month granted relief to a petitioner against the mandatory use of Aadhar for grant of subsidies under the NFSA..The Delhi High Court earlier this month issued notice to the Centre on a petition challenging the government’s decision to make Aadhaar mandatory for beneficiaries of subsidised food grains through the public distribution system (PDS)..Will the Supreme Court soon have a say?.A mentioning in the petition filed by Justice Puttaswamy ought to happen this week, but it is anybody’s guess as to whether the Supreme Court will take it up..This article suggests that it may be too late by the time the Supreme Court has its say, given the fact that the Centre has spent so much time and money on it and that citizens are increasingly getting on board.