Aadhaar legal tangle: Govt can be taken to task for contempt of court; experts wonder why SC didn’t

With the latest directive from the Supreme Court, Aadhaar, an identity project that many suspect has turned into a surveillance mechanis, has become legal tangle, heightening the public’s concern over its validity.

A bench headed by Chief Justice J S Kehar and Justices D Y Chandrachud and S K Kaul on Monday reiterated that the government cannot press Aadhaar for social welfare schemes. However, they said the government and its agencies cannot be stopped from seeking Aadhaar cards for non-welfare schemes like opening of bank accounts.

This is not the first time the Supreme Court has made such an observation. The apex court on 15 October, 2015 had lifted its earlier restrictions and permitted voluntary use of Aadhar cards in welfare schemes that also included MGNREGA, all pension schemes and provident fund, besides ambitious flagship programmes like ‘Pradhan Mantri Jan Dhan Yojna’ of the NDA government, PTI reported.

The Supreme Court in its 2013 order had directed that ‘no person should suffer for not getting the Aadhaar card’, inspite of the fact that some authority had issued a circular making it mandatory.

While the Supreme Court is clear that enrolling for Aadhaar is not mandatory, through Section 7 of the Aadhaar Act passed by Parliament this March, the government of India has effectively made Aadhaar enrollment mandatory for receiving any subsidy, benefit or service for which expenditure is borne out of the Consolidated Fund of India, the ET reported.

The latest directive by the court comes at a time when the government is issuing notification after notification, in a hurry to make the Aadhaar an integral part of the economic and social system of the country. And experts, from the left to the right end of political spectrum, have raised serious concerns about the move.

Undermining SC

“By making Aadhaar compulsory, the government is undermining the SC authority. It is unfortunate that the SC has not come down heavily on the government,” said Alok Prasanna Kumar, an advocate based in Bengaluru. “It is not possible to change a SC order by legislation.” The reason why the constitution bench heard the Aadhaar case was because it was a constitutional matter considering the scope and extent of privacy guaranteed under the constitution, he remarked.

With its latest observation on Aadhaar, the Supreme Court has gone against the Aadhaar Act, said Jehangir Gai, consumer activist. “The Act is for availing government subsidy only,” he said. For the government to insist that you need to give personal data to avail of subsidy is a intrusion, he said, adding that the government is ‘supposed’ to work in accordance with the legal framework but is instead flouting it.

The NDA government enacted the Aaadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, in March 2016 in a bid to provide legal sanctity for the system even as the case was being heard in the apex court.

The government has been proved to be wrong again and again on this issue, points out Gopal Krishna of the Citizens Forum for Civil Liberties (CFCL). Earlier in the National Scholarship case and then in the Lokniti Foundation vs Union of India case.

“The central government had told the Supreme court that it was following the SC’s September 2013 order regarding Aadhaar cards making it not mandatory and yet it is going on about doing just that,” he said.

He feels the government’s attempt is to replace the constitutional guarantees with Aadhaar. “There is no need to replace what is granted under the constitution with what the government now purports to give under its Aadhaar scheme,” he said.

What has many worried is the fact that the Supreme Court has not taken action against the government for committing contempt of court by making Aadhaar mandatory for essential services.

“The court was perfectly clear in its order that Aadhaar cannot be mandatory,” said Chinmayi Arun, Assistant Professor of Law at National Law University Delhi and Faculty Associate of the Berkman Klein Centre at Harvard University. Filing IT returns is mandatory and linking Aadhaar to it makes Aadhaar mandatory, Arun pointed out.

She suggests that the Supreme Court should order the government to desist from linking Aadhaar to all services. “If our democratic institutions fail us completely, people should protest. In the United States, there are protests everywhere, as there should be in a healthy democracy where the executive ignores the constitution completely.”

Safety issues

For anyone to get an Aadhaar number, the details that needs to be submitted include (i) biometric (photograph, finger print, iris scan) and (ii) demographic (name, date of birth, address) information. There is a wealth of information that is gathered by the government through a thumb print and a scary-looking photograph (with most people remotely resembling their photographs on the Aadhaar card) along with biometric information, and one’s bank account too linked to it which can be mined by a cyber criminal.

Experts say there are no mechanisms in place to secure the biometrics and other information that the individual hands over to the government.

Shailesh Gandhi, former Information Commissioner with the Central Information Commission spoke of not being ‘recognised’ by the system at two private banks where he tried to verify his Aadhaar number. “When I asked about the failure of the system to recognise me, I was told that only one out of every 15-20 persons are recognised by the system. If biometrics do not recognise the individual who has the card, it is a very serious problem. If you cannot verify an Aadhaar card, then you are back to corruption,” he said.

However, Gandhi doesn’t agree with concerns about privacy.

Anita Gurumurthy, founding member and executive director of IT for Change, raises a bigger concern of connectivity issues in rural areas. “You cannot blame anyone as power outages cannot be made an excuse to not give an individual his/her right share from the PDS system,” she said.

Before undertaking the exercise that links every service to Aadhaar and coercing people to take it or find themselves out of any scheme, the government should have taken measures to ‘strengthen’ the ecosystem, said Pavan Duggal, advocate with the Supreme Court and an authority on cyber security law.

“I am concerned about the cyber security ramifications with data being stored in a centralized source. We do not have a dedicated law on privacy and data protection,” said Duggal. The information about citizens at the command of the government is a volcano that can burst when used by unscrupulous elements if they get their hand on to the data, he said.

When the Aaadhar was introduced, it was done through an act of the executive, says Pavan Duggal. From 2009 to 2016, no legislation was passed by Parliament that gave legality to Aadhaar.

It is the lack of data protection laws in the country that worries most citizens. They fear misuse of their details that were given for a certain purpose — to avail of bank accounts, for IT purposes, et al. How does one ensure that consent is not abused, is the oft-asked question.

“We have no mechanism in the country currently to take issue of conflict to an authority. This poses a deep threat. We consent to pay IT, for instance, and have our files in the public domain but that information cannot be used by companies to sell cars to us or any other product or service,” said Gurumurthy.

No data protection law

There is not much clarity with regard to UIDAI and cyber rules and hence the privacy concerns with making it mandatory by the government. “Aadhaar deals with biometric information. Under the law, this is sensitive personal data,” contends Duggal.

The government can go out and assuage people’s fears in this sensitive issue. It should assure citizens that the information gathered will not be used against the individual except, for instance, if the sovereignty of the nation is threatened, suggested Duggal. Until such exceptions are spelt out, there will always be the fear of information being misused or targeted against individuals, groups or people by the government itself or any unscrupulous element who are able to lay their hands on it.

What the government is doing by making Aadhaar mandatory is denying the rights of citizens, points out Gopal Krishna of CFCL. The Aadhaar is proof of an individual’s residency in India and not of Indian citizenship.

“I don’t think Arun Jaitley and the government have examined the implementations of the Supreme Court’s directive. It is surprising as Jaitley is a lawyer of repute,” says he.