Will the Supreme Court save present and future Indians from Cyber-Biometric Panopticon?
On 21 April 2017, when Justice AK Sikri headed Bench of Supreme Court heard two cases Writ Petition (Civil) 277 of 2017 by Major General (Retd) Sudhir Vombatkere and Bezwada Wilson, leader of Safai Karamachari Andolan besides another petition filed by CPI leader Binoy Viswam related to violation of rights due to amendments in the Aadhaar Act, 2016 through Finance Act, 2017 enacted as a Money Bill, the questions he asked Attorney General gave a sense of deja vu.
 
Some four years ago, the then Chief Justice AK Sikri headed Bench of  the Punjab and Haryana High Court Bench had heard a case related to biometric Unique Identification (UID)/Aadhaar and passed an order dated 19 February 2013 wherein he had noted that the petition challenging mandatory requirement of Aadhaar “raises a pure question of law”. In its order, the Bench headed by Justice Sikri observed, “In this writ petition filed as PIL, the petitioner has challenged the vires of notification issued by Union of India for making it compulsory to have UID Cards." 
 
However, since the Executive Order of Union Territory of Chandigarh was withdrawn, the case too was disposed of on 2 March 2013 with a two-page order.  In this way the attempt to make. Aadhaar mandatory, which has emerged as an act of bullying by the government agencies and turning citizens into subjects by making right to have fundamental rights conditional on biometric identification was stopped in the tracks. In a setback to efforts to bulldoze Aadhaar and related schemes, following the direction issued to the Union of India and Union Territory of Chandigarh by Punjab and Haryana High Court in the matter of Civil Writ Petition 569 of 2013 filed in the High Court against Union of India and others, the Executive Order for making UID/Aadhaar mandatory was withdrawn.
 
In the current case, notably, Maj Gen Vombatkere, who retired as Additional Director General Discipline and Vigilance in Army Headquarters, has prayed that the Supreme Court should declare that Section 139AA of the Income Tax Act, 1961 (as introduced by Section 56 of the Finance Act, 2017) as ultra vires, unconstitutional, null and void and in particular violate Articles 14, 19 and 21 of the Constitution of India. 
 
Section 139AA of the Income Tax Act inserted by the Finance Act, 2017, makes Aadhaar mandatory for filing Income Tax Returns (ITR). 
 
As a consequence, Aadhaar has been made mandatory for obtaining permanent account number (PAN), continued validity of PAN and for filing of return under the Income Tax Act. He has also prayed that the Court should pass an order allowing filing of income tax return of individuals without Aadhaar number. He has also sought directions that no citizen of India be coerced to obtain an Aadhaar number and that the program under the Aadhaar Act is entirely voluntary even for assessee under the Income Tax Act, 1961. It has been contended that provision of biometrics has no reasonable relationship with the objectives of the Aadhaar Act as it ends up creating a wrongful classification among taxpayers.
 
While hearing the case, Justice Sikri asked the Attorney General as to how government can compel anyone to get Aadhaar when there are interim orders of the Constitution Bench.
In his reply, what Attorney General said was something, which was already stated by Ravishankar Prasad, the Minister of Law, Electronics and Information Technology, on 10 April 2017 during the Short Duration Discussion on Aadhaar in the Rajya Sabha. He said, “There is no stay by the Supreme Court. We are being governed by a mandate of the Aadhaar Act passed by the Parliament.” 
 
He added, “I am very clear in my understanding of law that if the Parliament enacts a law and unless the Court stays the operation of that law, this law will hold the field and that is what that it holding the field.” 
 
The minister referred to interim orders of the Supreme Court saying they were passed in 2015 and the Aadhaar Act came in 2016, assented by the President and became effective. He took the position that “My understanding of law is very clear that an interim order is only for the purposes of interim arrangement till the Parliament structures it. It is not a judgment. It has been referred to a Nine-Bench or Seven-Bench. Maybe, this law will also be considered.” 
 
Notably, the Aadhaar Act became effective after it was notified on 12 September 2016 in Gazette of India. 
 
It is germane to observe that the Minister feigned ignorance about the order of the Division Bench of Supreme Court dated 14 September 2016 in the matter of Writ Petition (Civil) 686 of 2016 wherein, the Court reiterated the Constitution Bench’s order dated 15 October 2015. The order reads: “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”. 
 
While making his submission Attorney General too seemed to suffer from selective amnesia regarding Court’s order dated 14 September 2016 passed after two days of the notification of the Aadhaar Act. It is an established constitutional norm that the last order of the Supreme Court is the law of the land.    
 
Like the Minister, the Attorney General referred to an irrelevant order of the Supreme Court dated 6 February 2017 in Lokniti Foundation Vs Union of India case. The fact is that in its counter affidavit in the Court, the Attorney General stated that biometric Aadhaar is voluntary. This submission, which has been reproduced in the order of Chief Justice of India headed two-Judge Division Bench including Justice NV Ramana stated, “Currently Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection.” 
 
In its petition, Lokniti Foundation, the petitioner had prayed that “The Aadhaar Card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers that can ensure 100% verification of mobile phone” but pursuant to Attorney General’s submission, it is apparent that the Bench decided to adhere to Constitution Bench’s order that keeps biometric Aadhaar Number voluntary. 
 
Misquoting this very order, the Minister misinformed the Rajya Sabha that “there is the system of Aadhaar-enabled verification for SIM card for the user. I have got the copy of the order. The Supreme Court has approved it as a very good system, which has been incorporated.” 
 
Notably, drawing on the same misrepresentation, the Department of Telecommunications (DoT) under Ravishankar Prasad has issued a circular dated 23 March 2017 making Aadhaar mandatory “regarding 100% E-KYC based re-verification of all existing subscribers” in the name of for “Implementation of Supreme Court orders”.  
 
It is evident that the Minister and the Attorney General will have us believe that two-Judge Bench’s order will prevail over the five-Judge Constitution Bench’s order. 
 
The Minister’s exercise in misrepresentation was once again exposed by Jairam Ramesh in the Rajya Sabha wherein he pointed out that the Minister “did not mention that there was a Supreme Court Order after the Act was passed on 14 September, 2016” and he underlined that “he quotes selectively from the 2015 Supreme Court Orders. Nowhere in those Supreme Court Orders does it say that the Supreme Court’s Orders are contingent on Parliament passing an Act.”  
 
Maj Gen Vombatkere have argued, “The State should ensure unhindered compliance of a person's obligation to pay income tax. Whether or not an individual is willing to part with his or her core biometric information is completely irrelevant to the discharge of this legal obligation, which is based on an objective criterion of the total income earned by a person.”  
 
He has submitted that, “The impugned provision violates Article 14 of the Constitution of India and is palpably arbitrary and illegal inasmuch as it creates an artificial impermissible classification between those persons who have parted with biometrics and those who have not parted with biometrics for the purpose of payment and collection of income tax.”
 
In the light to this submission, the Court is likely to apply the doctrine of prohibition of “unconstitutional condition” which means any stipulation imposed upon the grant of a governmental privilege that in effect requires recipient of the privilege to relinquish some constitutional right. The submission demonstrates that it is unreasonable in a special sense that Aadhaar takes away or abridges the exercise of a right protected by the Constitution. 
 
Apparently, under some external influence, Central Government’s stance has been insincere from the every outset. The total estimated budget of the biometric Aadhaar number project has not been disclosed till date. In any case, unless total estimated budget of the project is revealed all claims of benefits are suspect and untrustworthy.
 
After the trashing of Aadhaar by Lok Sabha’s Parliamentary Standing Committee on Finance and later by Rajya Sabha, the Court too will now have the opportunity to see through the coercive and unconstitutional nature of Aadhaar number project on 26 April 2017 when the case of Major General Vombatkere and others is scheduled to be decided by the Bench headed by Justice Sikri.
 
Meanwhile, the original case Writ Petition (Civil) No. 494 of 2012 filed by Justice KS Puttaswamy (Retd.) has been clubbed with 13 more petitions seeking scrapping of Aadhaar, which requiressetting up of Constitution Bench awaits the decision of the 44th Chief Justice of India despite admitted “urgency” by 42nd Chief Justice headed Constitution Bench after 43rd Chief Justice failed to set it up during his tenure. 
 
Citizens in general and legal fraternity in particular ought to note that from now on when Supreme Court says, “its urgent”, it means the matter can wait at least for one and a half year!  
 
Is it the case that the decision to set up Constitution Bench will be taken after July 2017 by the 45th Chief Justice?  
 
(The author is Member, Citizens Forum for Civil Liberties (CFCL). He had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. He is editor of www.toxicswatch.org)
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    COMMENTS

    SuchindranathAiyerS

    2 years ago

    India's Totalitarian State has made a nonsense of the Court's order on Aadhar as it has in the matter of Aazan, or speed bumps on Highways by withholding essential services unless Aadhar is produced. Aadhar is now mandatory for filing Income Tax returns. I do not see how the author sees that the bullying by the State to ensure compliance has, in any way, decreased. It will not, even of the court bans Aadhar because the State will sabotage the order with executive power as it does in so many matters. Executive Subversion is as endemic as Judicial Overreach. The only victim, as always, is the orphaned and powerless citizen.

    The most likely scenario is that, as the Court dawdles in its ponderous and timeless fashion, Indians would have been already Aadharized rendering the case infructuous.

    BR

    2 years ago

    Is Aadhaar given to illegal immigrants & their descendants from Bangladesh, Nepal,etc.? Are they made to appear as citizens of India by this way also? They destroy this cpuntry fast & take away our meagre food,water, electricity, etc.,helped by our citizens & govt officials.

    BR

    2 years ago

    Is Aadhaar given to illegal immigrants & their descendants from Bangladesh, Nepal,etc.? Are they made to appear as citizens of India by this way also? They destroy this cpuntry fast & take away our meagre food,water, electricity, etc.,helped by our citizens & govt officials.

    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

    2 years ago

    We are guinea pigs for Western Globalists Money Changers March.

    Umesh kaushik

    2 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 2 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

    2 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

    2 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

    2 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]

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