Arguments for Interim Relief

Constitutionality of Aadhaar Act

December 14th 2017

Today, the Aadhar matter was listed before the 5-judge bench comprising of CJI Dipak Misra, A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan JJ. The issue before the court was whether an interim injunction should be issued on the linking of Aadhar with various services until the matter was decided. This hearing was necessitated as the deadline for linking Aadhar to bank accounts is December 31st 2017.


Mr. Shyam Divan, representing the petitioners, began by reading various interim orders by the Supreme Court where which underlined that no one should suffer for not having Aadhar. He said that the courts through their interim orders had always clarified the non-mandatory nature of Aadhar. These orders have been continuously violated by the government by making Aadhar mandatory for various services. He listed the court orders dated 23.9.2013, 24.3.2014, 16.3.201515.10.2015, 14.09.2016, 3.11.2017 in support of his argument. He emphasized that as the government had not challenged these orders or sought their modifications, these interim orders are still valid.


Mr. Divan then read out the list of services, including scholarships, pensions, death certificates and midday meals, for which Aadhar had been made mandatory through circulars and notifications. He reiterated that making Aadhar mandatory through circulars in such a manner is unconstitutional and violates the Supreme Court orders. Mr. K.K. Venugopal, the Attorney General, countered this point by saying that when Aadhar was changed from a scheme to a statute, the basis of interim orders that emphasized the voluntary nature of Aadhar changed as well.


Mr. Venugopal continued that the Binoy Viswam decision (which challenged linking Aadhar with PAN Card) clarified that the basis of interim orders no longer held ground after the Aadhar Act was passed. Mr. Divan responded that passing Aadhar as a statute does not automatically make it mandatory unless provisions are changed. Mr. Venugopal pointed out that the Union of India could not answer for other organisations or bodies who are making Aadhar mandatory. This led to Mr. Divan remarking that the government was hollowing out the entire Constitution through the Aadhar Act.


Next, Mr. Divan read out Section 3 and 7 of the Aadhaar Act to emphasize the non-mandatory nature of Aadhar. DY Chandrachud J pointed out that Section 7 accepts an alternate to Aadhar only for the period between application and assignment of Aadhar number. Mr. Divan concluded by asserting that there was nothing in the Act or the Statement of Objects that overrides the voluntary nature of Aadhar. He concluded by praying for an interim stay on linking of Aadhar to services.


Mr. Gopal Subramanium began his argument by pointing out the consistent violation of court orders by the government. He highlighted that the protection of the dignity of individuals was the underlying basis of orders passed, and dignity of an individual is a fundamental right that cannot be taken away by any statute.


Mr. Arvind Datar argued next and noted that even if Section 7 of the Aadhar Act makes Aadhar mandatory, it only extends to those services/subsidies which are paid from the Consolidated Fund of India and questioned the wide linking of Aadhar to services ranging from the issuance of death certificates to exam hall tickets.


Then, Mr. Anand Grover began his arguments by stating that Aadhar cannot be the sole identification tool to provide services and subsidies due to its error-prone nature. He argued that 80 million people were excluded from services and subsidies due to non-recognition of their biometric data. Mr. Grover added that data protection under Aadhar is not secure and cited several instances where data was leaked by private parties. At this point, Sikri J pointed out that the Aadhar data is secure as it is encrypted.


Next, Mr. K. K. Venugopal conceded that the Government was willing to extend all deadlines for linking Aadhar to March 31st 2016 (except new bank accounts and SIM cards). The bench reserved the order for 15.12.2017 and is scheduled to resume hearings from January 17th 2018.

(The post relies on contributions from Ms. Nidhi Khanna)