Aadhaar: On Section 139AA what is at stake?
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.
 
Even while the matter was sub-judice and the apex court orders were explicit about maintaining status quo till the final decision of the Court, The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was introduced on the advice of the Attorney General as a Money Bill. The Act violates the status quo, is preemptive and subverts the petitions pending before the Supreme Court.
 
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.)
 
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    COMMENTS

    Pradeep Kumar M Sreedharan

    3 years ago

    We are guinea pigs for Western Globalists Money Changers March.

    Umesh kaushik

    3 years ago

    We are in very difficult times, constitutional bodies are being trampled upon, incumbents in High offices belittle the office they hold, very sad.

    REPLY

    ramanamurty malla

    In Reply to Umesh kaushik 3 years ago

    Agreed. There are lakhs of NRIs who don't have Aadhar card. How can Government make compulsory for people to get Aadhar number. Supreme Court is Right in saying Aadhar can't be made compulsory for all Indians.

    SC questions govt over making Aadhaar as mandatory
    Coming down heavily on the Narendra Modi government, the Supreme Court on Friday asked how they could make Aadhaar mandatory when the apex court has made it optional. The Court also asked the Centre to justify the need for making Aadhaar mandatory for filing income tax returns (ITRs).
     
    The Court said it will examine next week the constitutional validity of central government's decision to link the Aadhaar with the permanent account number (PAN) card. 
     
    Mukul Rohatgi, the Attorney General was quoted in the reports as saying that "We found a number of PAN cards being used to divert funds to shell companies. To prevent it, the only option is to make Aadhaar mandatory."
     
    The Bench of Justice AK Sikri, and Justice Ashok Bhushan, asked the Attorney General that “Is this the remedy? Forcibly asking people to get Aadhaar cards?”
     
    The court was hearing a petition filed by former Kerala Minister Binoy Viswam, represented by senior advocate Arvind Datar and advocate Sriram Prakkat, challenging the constitutionality of Section 139AA inserted in the Income Tax Act by the Finance Act, 2017.
     
    The Attorney General argued that it was a mandatory requirement under Section 139A of the Income Tax Act to allot PAN and Aadhaar is only being linked to it. 
     
    Mr Datar contended that the Aadhaar Act itself does not make obtaining Aadhaar mandatory. “Going by the Attorney General 's logic about fake PANs, I get a PAN card on the basis of showing my Aadhaar as proof. Aadhaar is a basic document along with driving licence. By making Aadhaar mandatory under Section 139AA, my PAN become invalid. This has serious consequences," he said.
     
    In his petition, Mr Viswam, former minister from Kerala, had stated that “Section 139AA of the Income Tax Act, 1961, which makes enrolment for Aadhaar mandatory, without making appropriate amendments to the Aadhaar Act which till date does not prescribe that the enrolment is mandatory, in a Finance Bill was with the intention of avoiding the Rajya Sabha where the ruling party does not have a majority. It is submitted that the said amendment is completely contrary to Article 110 of the Constitution, which defines a Money Bill."
     
    The Modi government had enacted the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 as a Money Bill. However, Congress MP and former Union Minister Jairam Ramesh had challenged this enactment in the apex court.
     
    Ever since Finance Minister Arun Jaitly announced to link Aadhaar number with PAN card and mandatory for filing ITR, several people are finding it difficult to link both due to mismatch in data fields. Over the years, PAN cards are known as linked with Income Tax and ITRs and are issued through a verification process. The same cannot be said to be true for Aadhaar as it is the private companies that collect the data, which is never verified or audited by any government agency or authority.
     
    The Supreme Court had time and again restricted use of unique identification (UID) number or Aadhaar to public distribution system (PDS) Scheme, the liquefied petroleum gas (LPG) distribution scheme, 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).  The Supreme Court has repeatedly emphasised that the UID number where permitted “is purely voluntary and it cannot be made mandatory till the matter is finally decided by the Court one way or the other“.  
     
    On 15 October 2015, the Constitution Bench of Supreme Court led by the then Chief Justice HL Dattu had ruled that no person shall be deprived of services such as MNREGA, Jan Dhan Yojana, pension and provident fund schemes for want of Aadhaar. The Bench even hinted that the government risked contempt of Court if it chooses to continue to make Aadhaar number a mandatory condition.
     
    Earlier on 23 September 2013, a bench of Justice J Chelameswar, Justice SA Bobde and Justice C Nagappan, without going into concrete examples, had said: "In certain quarters, Aadhaar are being insisted on by various authorities."
     
    "...no person should suffer for not getting the Aadhaar in spite of the fact that some authorities had issued a circular making it mandatory and when any person applies to get the Aadhaar voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant," the apex court had said in its order. 
     
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    COMMENTS

    BR

    3 years ago

    Please give the copy & no.of the Supreme Court Order saying that Aadhaar may be used for LPG connection. & PDS. MY EMAIL Id is [email protected]

    BR

    3 years ago

    Please give the copy & no.of the Supreme Court Order saying that Aadhaar may be used for LPG connection. & PDS. MY EMAIL Id is [email protected]

    BR

    3 years ago

    Please give the copy & no.of the Supreme Court Order saying that Aadhaar may be used for LPG connection. & PDS. MY EMAIL Id is [email protected]

    Aadhaar: What exactly happened in the Supreme Court on Monday?
    Contrary to media reports that the Supreme Court allowed usage of Aadhaar number for non-benefit schemes, nothing really happened. In fact, all previous orders passed by the apex court on Aadhaar remain unchanged. 
     
    According to one of the lawyers present in the Court, on Monday, the Aadhaar matters and the intervention application for stay on the Act were mentioned before the Bench of Chief Justice Jagdish Singh Khehar, Justice DY Chandrachud and Justice Sanjay Kishan Kaul. Senior Counsel Shyam Divan informed the Bench about earlier orders passed in this matter. 
     
    "Given the Chief Justice Khehar or any of the judges in the Bench had never heard the case before, they had some questions on whether Para 5 of the 15 October 2015 order making it purely voluntary was for benefit schemes as well as non-benefit schemes. Therefore Chief Justice Khehar suggested that it could be used for other non-benefit schemes such as Income Tax filings. Sr Counsel Divan clarified on that point," the lawyer says.
     
    Chief Justice Khehar expressed his opinion about perhaps setting up a Seven Judge Bench for hearing the main petition on Aadhaar. However, Sr Counsel Divan informed the Bench that the matter is before Justice Jasti Chelameswar, who had already indicated the order in which the Constitution Bench matters would be taken up for hearing. Aadhaar is one of the three such matters. Upon hearing this, the Chief Justice declined to intervene.
     
    "In short, nothing changed today and there was no order passed by the Court," the lawyer concluded.
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    COMMENTS

    BR

    3 years ago

    Supreme Court must clarify whether Aadhaar is a must fo LPG,PDS,NEET, Driving Licence,etc. Even though its order that it is not compulsory is valid, Govt Depts are forcing it on us. UIDAI says that it only gives Aadhaar to whoever wants it but does not force it on us. Petroleum Ministry says that UIDAI gave a list of services for which Aadhaar is needed. Aadhaar Act did not & cannot remove the court order. TheGovt must clarify.

    BR

    3 years ago

    Supreme Court must clarify whether Aadhaar is a must fo LPG,PDS,NEET, Driving Licence,etc. Even though its order that it is not compulsory is valid, Govt Depts are forcing it on us. UIDAI says that it only gives Aadhaar to whoever wants it but does not force it on us. Petroleum Ministry says that UIDAI gave a list of services for which Aadhaar is needed. Aadhaar Act did not & cannot remove the court order. TheGovt must clarify.

    LALIT SHAH

    3 years ago

    Most of highly learned and connected with politics and judiciary was opposing Aadhaar .Now forcing to give Aadhaar every where.How Aadhaar is secured with Government just example all telcome compony have whole biomatric data like JIO ,AIRTEL pay tm and this data is freely awailable with there 4-5 class staff.............................jay ho achhe din aa gaye

    Freddie Movdawala

    3 years ago

    How Do We apply for Aadhar Card of a person who is bed ridden and who is 85 years of age and is not mobile

    MOHAN SIROYA

    3 years ago

    Good Omen! So far so good.
    But the Government cares two hoots for such Apex Court orders and violates with impunity by linking all benefits ,transactions or any other act of the Indian citizen to an Aadhaar number. Now from April all railway reservations done online will compulsorily require Aadhaar number. All those who have not yet made Aadhaar, thus are advised to RUSH without waiting for any remedial order from the
    Supreme Court .

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