Aadhaar And The Supreme Court’s Sense Of Urgency

On 21 April, when Justice A K 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, Chief Justice A K 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 February 19, 2013 wherein he had noted that the petition challenging mandatory requirement of UID/Aadhaar “raises a pure question of law.” In its order, Justice Sikri Bench headed 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."

But since the Executive Order of Union Territory of Chandigarh was withdrawn, the case too was disposed of March 2, 2013 with a two page order.  In this way the attempt to make UID/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 UID/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filed in the High Court against Union of India and others, the Executive Order for making UID/Aadhaar mandatory was withdrawn.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, Major General Vombatkere 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) is 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. As a consequence, Aadhaar has been made mandatory for obtaining 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/Aadhaar card and that the the program under the Aadhaar Act is entirely voluntary even for assessees 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 tax payers.

A 2-days workshop titled “Understanding Aadhaar and Its New Challenges” organized by Centre for Studies in Science Policy, Jawaharlal Nehru University (JNU) on 26-27 May, 2016 deliberated on how the JAM Number Trinity– Jan Dhan Yojana, Aadhaar and Mobile numbers— is a fish bait to trap unsuspecting citizens into the world’s biggest transnational biometric database. This turns them into subjects under surveillance forever by letting companies like Safran, Accenture and Ernst & Young get unrestricted access to personal sensitive data of Indians forever as per their Contract Agreements with Unique Identification Authority of India (UIDAI), Minister for Law, Electronics and Information Technology in the name of a set of welfare programmes.

In the Central Identities Data Repository (CIDR) of 12-digit biometric Unique Identification (UID)/Aadhaar Numbers, the Indian residents are seen by somebody from any part of the planet but they do not see the person who is seeing them. He/she is the object of information, but never a subject in communication like in this Panopticon which is an architectural configuration that allows for a single guard's gaze to view all inmates in a prison, but prevents those inmates from knowing exactly when they are being watched and from where. This design is a general model of defining power relations in the everyday life of humans.

Notably, Biometrics “means the technologies that measure and analyse human body characteristics, such as 'fingerprints', 'eye retinas and irises', 'voice patterns', "facial patterns', 'hand measurements' and 'DNA' for authentication purposes” as per Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000. The minutes of Approach Paper for legislation on Privacy communicated by the Department of Personnel and Training, Government of India defined ‘Personal Sensitive Data' that includes biometric data and genetic information.

The creation of CIDR is an act of political record keeping. It is an act of using human body as data. The motive of CIDR has some link with what happened in a Court in Norway in the case involving Anders Behring Breivik, who has been found guilty of killing eight people in Oslo and 69 at Utøya on July 22, 2011. Breivik's case reminds one of the words used in his 1,518 pages-long manifesto '2083: A European Declaration of Independence’. This manifesto makes repeated reference to 'identification,' to the word 'identity' over 100 times, to 'unique' over 40 times and to 'identification' over 10 times. There are references to 'state-issued identity cards', 'converts' identity cards', 'identification card', 'fingerprints', 'DNA' etc. Breivik's obsession with 'identification' mirrors the fixation of the promoters of UID/Aadhaar. His manifesto finds resonance in the exercise for CIDR, an 'online database'. This UID/Aadhaar for CIDR in every context can act as a “unique personal identifier”. This identifier is to everyday surveillance as the discovery of longitude was to navigation. The fixation with identification based on 'biological attributes of an individual' provided under the Aadhaar Act 2016 has unprecedented political implications.

The revelations in National Defense Magazine, a US publication in an article entitled "Defense Department Under Pressure to Share Biometric Data" underline that concerns regarding violation of fundamental right to privacy is linked to deeper strategic implications of biometric surveillance as a political and economic operator.

Linking of biometric UID/Aadhaar Number to all public services is designed to cause civil death. Civil death is the loss of all or almost all civil rights by a person caused by the government of a country which results in the loss of civil rights.  The declaration of a person as an outlaw has been a common form of civil death. Now it is apparent that denial of rights in the absence of UID/Aadhaar is an act of coercion wherein people are being compelled to share their personal sensitive biological information else they will face civil death.

While hearing the case, Justice Sikri asked the Attorney General as to how government can compel anyone to get UID/Aadhaar when there are interim orders of the Constitution Bench.

In his reply what Attorney General said was something which was already stated by Minister of Law, Electronics and Information Technology, Ravishankar Prasad on 10 April during the Short Duration Discussion on UID/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.”

He 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 which 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, Attorney General referred to an irrelevant order of the Supreme Court dated February 6, 2017 in Lokniti Foundation V Union of India case. The fact is that in its counter affidavit in the Court, the Attorney General stated that biometric UID/Aadhaar is voluntary. This submission which has been reproduced in the order of Chief Justice of India headed 2-Judge Division Bench including Justice N V Ramana stated that “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 Aadhar 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 UID/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 under him 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 Hon'ble Supreme Court orders”.  It is evident that the Minister and the Attorney General will have us believe that 2-Judge Bench’s order will prevail over the 5-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 14th 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.”

Major General et al have argued that “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 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 which in effect requires the 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. In Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974), the Court has drawn on a verdict from US Supreme Court in Frost and Frost Trucking Co. v. Railroad Comm to hold that State does not have the right to impose conditions which require the relinquishment of constitutional rights. If the state succeeds in compelling the surrender of one constitutional right as a condition of its favour, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution be manipulated out of existence.

In the light of this verdict, it is quite evident that the implementation of UID/Aadhaar is an exercise which is forbidden by our Constitution. If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. State does not have the constitutional power to discontinue benefits due to citizens. State’s power to withhold recognition or affiliation altogether does not carry with it unlimited power to impose conditions which have the effect of restraining the exercise of fundamental rights.

Infringement of a fundamental right is nonetheless infringement because it is accomplished through the conditioning of a privilege. If a Legislature attaches to a public benefit or privilege restraining the exercise of a fundamental right, the restraint can draw no constitutional strength whatsoever from its being attached to benefit or privilege. This is applicable to the Aadhaar Act, 2016.

Notably, Re Kerala Education Bill (1958) was the first case in India to lay down the doctrine of the prohibition of “unconstitutional conditions“.

The doctrine of unconstitutional conditions prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights. This is despite the fact that there is no antecedent right to that benefit in the first place. It emerges that no Central or State Government can coerce citizens to access subsidies by sacrificing their private data by enrolling for UID/Aadhaar given the fact that they have a right to subsidy. No Government has the constitutional power to make right to have rights condition precedent.

Apparently, under some external influence, Central Government’s stance has been insincere from the every outset. The total estimated budget of the biometric UID/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 UID/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 UID/Aadhaar Number project on 26 April when the case of Major General and others is scheduled to be decided by Justice Sikri headed Bench.

Meanwhile, the original case Writ Petition (Civil) No. 494 of 2012 filed by Justice K S Puttaswamy (Retd.) has been clubbed with 13 more petitions seeking scrapping of UID/Aadhaar, which requires setting up of Constitution Bench awaits the decision of the 44th Chief Justice of India despite admitted “urgency” by 42nd Chief Justice of India 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, “it is 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

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]