Potential Infringement Of Child's Right To Privacy: High Court Upholds Stay On Aadhar Mandate For EWS Admissions In Delhi Private Schools

The Delhi High Court has upheld a single judge order staying two circulars issued by the Delhi Government mandating furnishing of Aadhaar card of a child in the online process for admission in a private school in the national capital under the EWS or DG category.

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula said that the issue of obtaining sensitive personal details of a child, as observed by the Supreme Court in K.S. Puttaswamy case, would have the potential of infringing their right to privacy under Article 21 of the Constitution of India.

“It would thus suffice to state that the impugned Circulars are prima facie in conflict with the constitutional provisions, effect whereof has rightly been stayed by learned Single Judge,” the court said.

The bench dismissed Delhi Government’s appeal against the order passed by Justice Anup Jairam Bhambhani on July 27 staying the operation of Delhi Government’s circulars issued on July 12, 2022 and February 02.

The last year circular stated that Aadhar shall be mandatory for online admission process for EWS/DG and CWSN category in private unaided schools in Delhi from upcoming session i.e. 2023-24 onwards. The subsequent notification added that a child’s Aadhar is mandatory to avoid duplicacy of EWS/DG/CWSN application.

The single judge had passed the order on a plea moved by a father alleging that his 5 year old child was unable to participate in the online admission process at the entry class level since he did not have an Aadhar card.

While issuing notice in the plea, Justice Bhambhani had observed that a child cannot be compelled to hold an Aadhaar card and cannot be denied any subsidy or benefit or service on failure to establish identity by furnishing an Aadhaar number. The plea is listed before the single judge on November 06.

Upholding the single judge order, the division bench clarified that it was only dealing with an interim order and that the single judge was yet to take a final view. The court said that it does not wish to deliberate further on the issues urged in the appeal.

It was the Delhi Government’s case that using the child’s Aadhaar Number as a unique identifier aims to eliminate duplicate admission applications and ensure accurate identification.

It was submitted that mandating Aadhaar Card or Aadhaar Number for child admissions under the Right of Children to Free and Compulsory Education Act, 2009, does not violate the minor’s right to free and compulsory education. Rather, it serves as a safeguard against fraudulent applications and admissions based on false identities, the government said.

“The Court has considered the afore-noted contentions. In the opinion of the Court, the view taken by learned Single Judge is completely in consonance with the judgment of Supreme Court in K.S. Puttaswamy (Supra), relevant portions whereof has been extracted in the impugned order,” the court said.

Standing counsel Santosh Kr. Tripathi appeared for Delhi Government, with Advocates Arun Panwar, Pradyumn Rao, Utkarsh Singh, Kartik Sharma, Prashansha Sharma and Rishabh Srivastava.

Advocates Ayush Agarwala and Auritro Mukherjee appeared for the respondent.

Title: GNCTD v. Sashank Yadav

Citation: 2023 LiveLaw (Del) 863