The legal battle, since 2012

The legal battle, since 2012

The Opposition to Aadhaar is not something which is faced by the NDA government alone. It began in 2012 after a writ petition was filed by a retired judge of the Karnataka High Court, Justice K S Puttaswamy, in the Supreme Court. In 2009, then UPA government set up the Unique Identification Authority of India to issue Aadhaar cards to its citizens.

Justice Puttaswamy sought a stay on the January 28, 2009, notification on the UIDAI. He contended that it tantamounted to implementing the provisions of the National Identification Authority of India Bill, 2010, pending before Parliament. He feared that the fundamental rights of innumerable citizens of the country, particularly their right to privacy falling under Article 21 of the Constitution, would be adversely affected by the executive action. The petitioner apprehended that the Aadhaar cards could be issued to illegal immigrants without verification, enabling them to claim citizenship rights.

The government then claimed that the Aadhaar scheme was purely voluntary. However, the petitioner countered that different states had still embarked upon making it compulsory for a range of formalities, including marriage registration, disbursal of salaries and provident fund among other public services.

Acting on the plea, the apex court passed its order on September 23, 2013: “No person should suffer for not getting an Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory.” The court also directed that the Aadhaar card should not be given to any illegal immigrant.

Next month, the Union government approached the court saying its order has stayed the Direct Benefit Transfer for Liquefied Petroleum Gas Consumers (DBTL) scheme. The scheme would reduce the subsidy burden and prevent unscrupulous elements from diverting public resources. The court then refused to modify its order. “It is a double-edged problem,” it observed while reiterating that there should not be any compulsion for Aadhaar.

Another PIL was filed by retired army officer Mathew Thomas in the apex court. Besides, raising the privacy issue, the petition claimed that the entire exercise was nothing but a colossal waste of public money and exposed India's vulnerabilities. This petition again challenged the circulars making the Aadhaar number compulsory for various facilities.

As the NDA government came to power, it told the apex court that Aadhaar was not mandatory to avail social benefit schemes, LPG subsidy and other public services. In March 2015, the apex court cautioned government officials that insisting on Aadhaar cards for citizens to avail any benefit would have serious consequences for them. In July, the government claimed there could be no roll back of Aadhaar, as calling it off may affect various welfare schemes and its resolve to remove poverty. The issue of the right to privacy, it said, should be referred to a five-judge bench. The government relied upon an eight-judge bench decision in 1954 that ruled the right to privacy cannot be a fundamental right. It also cited another apex court judgment by a six-judge bench in 1963 which held that “the right of privacy is not a guaranteed right under our Constitution.”

In October 2015, on applications by UIDAI, Reserve Bank of India, Securities and Exchange Board of India, Telecom Regulatory Authority of India and others, a five-judge bench allowed the government to use Aadhaar cards for Prime Minister's Jan Dhan Yojana, MNREGA, various pension and provident fund schemes only after obtaining consent of the citizens. The court then modified its previous order of August 11 where the use of cards, issued by UID to the citizens containing their biometric data, was limited to the distribution of LPG and PDS only. The court, however, directed the government to follow strictly its order of September 23, 2013, that no person should be deprived of any benefit of the social welfare scheme in case he/she did not have Aadhaar card.

Meanwhile, the Aadhaar Act, 2016, was passed, giving the scheme a statutory backing, This year, when the government amended the Income-Tax law to make it mandatory for all assesses to link their PAN with the Aadhaar number, another batch of PILs was filed by Binoy Viswam, former forest minister of Kerala, challenging the move. The top court upheld the validity of the amendment that enjoined all to link their PAN with the Aadhaar by June 30 for filing their Income Tax returns. A separate set of PILs, led by former National Commission for Protection of Child Rights chairperson and Magsaysay winner Shanta Sinha, was filed this year challenging the validity of as many as 17 government notifications making Aadhaar mandatory to access welfare schemes and benefits after June 30, 2017. The apex court is yet to consider it. The bigger constitutional issue of the right to privacy is also pending adjudication.