The matter of 139AA is not simply about linking the Aadhaar number to a permanent account number (PAN). It is about upholding rule of law and the dignity of the Supreme Court.
The Supreme Court’s Orders
The apex court in its orders of 15 October 2015
noted that “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23 September 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”.
On 23 September 2013, the SC had ordered
, “no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily”. In the matter of CRL 2524 of 2014 on 24 March 2014
the apex court had reiterated that “no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/ circulars/ likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith”.
In its order of 11 August 2015
, the Court ordered that Aadhaar may not be used for any purpose other than the PDS Scheme, for the distribution of foodgrains, and cooking fuel, such as kerosene and LPG. This was extended to allow its use for the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister's Jan Dhan Yojana (PMJDY) and Employees' Provident Fund Organisation (EPFO) in its orders of 15 October 2016
. The court also stated that the information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose.
On 14 September 2016 in the matter of WP 686 of 2016 the court stayed
the operation and implementation of that or Pre-Matric Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-cum-Means Scholarship Scheme to the extent they have made submission of Aadhaar mandatory.
The Supreme Court’s mind on Aadhaar has been unambiguous and consistent.
The Attorney General’s Promises
The Attorney General submitted to the court, on 11 August 2015
, that to settle the legal position regarding the existence of the fundamental right to privacy, this batch of matters on Aadhaar is required to be heard by a larger Bench. He framed the questions before the bench as – (i) whether there is any “right to privacy” guaranteed under our Constitution. (ii) If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy. In doing so he caused the Court to place these matters before the Chief Justice of India to be referred to be examined and authoritatively decided by a Bench of appropriate strength.
The apex court further noted that the Attorney General stated that the Union of India would ensure that Aadhaar cards would only be issued on a consensual basis, which shall however not be used for any purpose other than a social benefit schemes. The Attorney General also stated that the respondents do not share any personal information of an Aadhaar cardholder through biometrics or otherwise with any other person or authority. This statement allays the apprehension for now, that there is a widespread breach of privacy of those to whom an Aadhaar card has been issued. It was further contended on behalf of the petitioners that there still is breach of privacy.
The Attorney General’s Acts
Despite the directions of the Court there have been hundreds of violations of the orders of the apex court. In 2017, more than 60 gazette notifications have been issued
linking various programs with Aadhaar or mandating it. Authorities have not modified their forms/circulars/likes so as to not compulsorily require the Aadhaar number. Aadhaar card requirement has not been kept as purely voluntary. Aadhaar numbers have been used for purposes other than for the schemes permitted by the court. Information associated with the Aadhaar number has been shared with several government agencies as well as private parties. No advertisements, processes, procedures, Memorandum of Association (MOA), technology, framework, API have been amended to ensure explicit, unambiguous and clear steps to comply with the court’s orders. Many government agencies and private companies have been coercing the enrolment for Aadhaar. Crores of people continue to suffer from the Aadhaar.
As if this were not enough, in the WP 607 of 2016 filed by Lokniti praying for a definite mobile phone subscriber verification scheme, the Attorney General filed an affidavit describing “Aadhaar based e-know-your-customer (E-KYC) for issuing mobile connections introduced on 16 August 2016 wherein the customer as well as Point of Sale (PoS) Agent of the telecom service provider (TSP) will be authenticated from Unique Identification Authority of India (UIDAI) based on their biometrics and their demographic data received from UIDAI is stored”.
The Attorney General omitted to mention to the bench that such use of Aadhaar was already a violation of his promise to the Court and the orders of the Supreme Court in the petitions on Aadhaar pending with it. The Court was misled into believing that existing subscribers can be verified in a similar manner and the process will be completed within one year. There was no effort by the Attorney General to either point out to the court its restrictions on the use of Aadhaar or to let the petitioners in the Aadhaar matter and have their say.
In March 2017, in a surprise addendum to the Finance Bill, under advise of the Attorney General, the union government introduced Section 139AA. Section 139AA requires linking the PAN card to an Aadhaar number to file income tax returns (ITRs) and allow the PAN to remain valid. This too is in contempt of the orders of the Supreme Court, is preemptive and subverts the process of justice.
In testimony of the fears placed before the court and contrary to the promise of the Attorney General to the court, the last two months have witnessed several data leaks
that indicate the sharing of UID information across government agencies. The UIDAI continuing to service the partner agencies for KYC and authentication beyond the permitted usage also points to information sharing that is beyond government. As noted by the court, the petitioners’ fears of violation of privacy have been vindicated.
Questions of Rule of Law and the Balance of Power
Is the Attorney General above the Rule of Law? Is his word and interpretation law that must go unchallenged? Can the power of the Supreme Court not extend to hold the Attorney General responsible for commissions and commissions? Has the Attorney general used tactics that have preempted and subverted justice? Who is responsible for the national and public interest that may have been compromised in the process? Has the balance of power of the executive and judiciary been upset by the blatant contempt of the courts orders? Do the orders of the court matter to maintain the rule of law?
We the people of India have waited patiently and long as the justice, equality, liberty and fraternity promised to us by the constitution is kept from us.
(Dr Anupam Saraph is a renowned expert in governance of complex systems and advises governments and businesses across the world. He can be reached @anupamsaraph.)