The legal questions surrounding Aadhaar continue to trouble the government.Can the government use Aadhaar or not?If it can use, will it be voluntary or mandatory?And it seems that there are no easy answers from the courts. On 14 September, the Supreme Court granted an interim stay against the mandatory use of Aadhaar for scholarship schemes given by the Centre.All Bengal Minority...
The legal questions surrounding Aadhaar continue to trouble the government.
Can the government use Aadhaar or not?
If it can use, will it be voluntary or mandatory?
And it seems that there are no easy answers from the courts.
On 14 September, the Supreme Court granted an interim stay against the mandatory use of Aadhaar for scholarship schemes given by the Centre.
All Bengal Minority Students Council moved the Supreme Court in a civil writ petition in which Gopala Gowda and Adarsh Kumar Goel, JJ directed Ministry of Electronics and Information to remove Aadhaar number as a mandatory condition for student Registration form at the National Scholarship Portal on the government’s website. Senior Advocate Gopal Singh appeared for the petitioners.
At least two other cases are currently pending on similar issues. The plea in Delhi High court is on the exact same issue and could likely be infructuous now.
Mathew Thomas, the original petitioner in the Aadhaar case has also filed a contempt petition in the Supreme Court challenging the mandatory use of Aadhaar for various government schemes. The court has agreed to hear him but has fixed a date.
The court referred to their interim orders issued in the case challenging the constitutional validity of Aadhaar which categorically said that the number cannot be mandatory but the government is free to encourage voluntary use.
“We will make it clear that Aadhaar card scheme is purely voluntary and cannot be made mandatory till the matter is decided by the court one way or the other,” the court had said in October last year by a bench comprising former chief justice H.L Dattu, and justices M.Y Eqbal, C. Nagappan, Arun Mishra and Amitava Roy.
In the same order, the court allowed Aadhaar to be used for a few more government schemes such as LPG subsidy transfer, PDS ration, MGNREGA, pension schemes and Jan Dhan Yojana. But that was before the Aadhaar law was passed.
The court’s interim stay order also does not take the new law into consideration, which is going to more confusion on the legal backing for Aadhaar.
Earlier this month, the government fully notified the Aadhaar (Targeted Delivery of Financial and Other Subsides, Benefits and Services) Act, 2016 which formally signals the use of Aadhaar based authentication for benefits.
Section 7 of the Act, states that for obtaining any benefit, service, subsidy that comes from the Consolidated Fund of India, one would need authentication through Aadhaar. If one does not have Aadhaar, then other identification cards will be accepted it says.
But clearly, various government agencies have not been adhering to the law. Perhaps the court should intervene and spell out if the new law gives the government more powers to use Aadhaar than before?
And the larger question on privacy continues to remain elusive for everybody. The court on 11 August last year said that a Constitution bench should rule on whether right to privacy is a fundamental right under the constitution or not. A year has passed since then and the bench is yet to be constituted.
Till then, Aadhaar will be clouded with more questions than answers.
Read the Order here.