No change, Aadhaar remains voluntary

Those who wittingly or unwittingly promote biometric profiling-based 12 digit-Unique Identification (UID)/Aadhaar number must remember that the old maxim — “If you have nothing to hide, you have nothing to fear” — has been given a very public burial. 

This maxim, attributed to Nazi propaganda minister Joseph Goebbels, has been debunked. This myth is never questioned when it is advanced as an argument to support whatever draconian surveillance measure is being pushed out. These assumptions include existence of a benign government. It ignores the fact that no single entity can securely withhold information amidst massive pressures to share information within and beyond government. Information flow is akin to water flow which is getting monetised by the private sector of all ilks. 

In its counter affidavit in the Supreme Court in Lokniti Foundation vs Union of India case, the Union of India has stated that UID/Aadhaar is voluntary. This submission has been reproduced in the order of CJI headed two-Judge Division Bench on February 6, 2017 that stated “currently Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection.”

In its petition, Lokniti Foundation, had prayed that “the Aadhar card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers.” After the Attorney General’s submission, it is apparent that the Bench decided to adhere to the Constitution Bench’s order that keeps biometric UID/Aadhaar Number voluntary. 

This position has been repeated by the High Courts of Karnataka, Jammu and Kashmir and Andhra Pradesh. In a glaring case, Punjab and Haryana High Court bench headed by the then Chief Justice A K Sikri (currently a judge of the Supreme Court) heard a matter challenging a circular making UID/Aadhaar number mandatory. The moment the Court raised questions of laws, the Centre withdrew the circular. The decision underlined that the UID/Aadhaar project is illegitimate and indefensible. When it is made mandatory, it is legally assailable. Notably, the West Bengal Assembly passed a unanimous resolution against the UID/Aadhaar number-related scheme in supreme public interest. The current CJI headed Division Bench made a slight departure from its observation on January 5, 2017, wherein a CJI headed three-Judge Bench, including Justice N V Ramana and Justice D Y Chandrachud, observed that there is no urgency in setting up a Constitution Bench as per the request of Chief Justice of India headed 5-Judge Constitution Bench including Justice M.Y. Eqbal, Justice C. Nagappan, Justice Arun Mishra and Justice Amitava Roy. The order of the Constitution Bench reads: “Since there is some urgency in the matter, we request the learned CJI to constitute a Bench for final hearing of these matters at the earliest.” Over 15 months have passed but the order remains unresponded. This order puts on record that: “This Bench is constituted only for the purpose of deciding the applications filed by the Union of India seeking certain clarification/modification in the orders passed by a Bench of three learned Judges of this Court dated 11.08.2015.” It is germane to note that this August 11, 2015 order of the three-Judge Bench of Justice Chelameswar, Justice S.A. Bobde and Justice C. Nagappan observed, “We are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches.” Its order reads: “By a reasoned order, the matters are referred to a Bench of appropriate strength.” 

The order of the Bench of appropriate strength dated October 15, 2015 passed by the CJI headed 5-Judge Constitution Bench of Supreme Court in the “UID/Aadhaar” matter reads: “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013. We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.” The Court reiterated its order on September 14, 2016 after the passage of The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 underlining the fact that the last order of the Supreme Court is the law of the land. Indian residents or agencies which are facing problems due to any order which are making biometric UID/Aadhaar Number compulsory can use the Court’s orders to save oneself from illegitimate, illegal and unconstitutional instructions or circulars. Notably, the existing legal provisions do not provide for seeding of UID/Aadhaar with any scheme or project. Nor does it provide for biometric profiling which is underway in an illegitimate manner. Meanwhile, the USA, Australia, China, France, UK and the Philippines have abandoned biometric uniqueness-based national identification exercises. It is quite evident that repeated Court’s orders issued till February 6, 2017 make it clear that UID/ Aadhaar remains voluntary. 

While it can be safely inferred that the hearing by CJI headed 3-Judge Bench on January 5, 2017 was not done by a Bench of appropriate strength, but the hearing by the Division Bench on February 6, 2017 is compliant with “institutional integrity and judicial discipline”. Notably, Supreme Court’s website continues to refer to Writ Petition (Civil) 494 of 2012 and related cases under the “Subject Category: Five Judges Bench Matter”, making it abundantly clear that Supreme Court’s Registry has not complied with the order of the Justice Chalmeshwar-headed Bench wherein it observed, “We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.”

There is a logical legal obligation for government and non-government agencies that are implementing Aadhaar-related schemes and systems to use the order of the Election Commission (August 13, 2015) as a template to revise their orders and circular to comply with Court’s order in letter and spirit. There is hope that Supreme Court’s Constitution Bench will be set up in right earnest before it is too late. 

The writer is with Citizens Forum for Civil Liberties (CFCL)