The Centre on Thursday told the Supreme Court that it is willing to extend the deadline to link all services with Aadhaar to March 31. On Friday, the five-judge Constitution bench is scheduled to deliver its order on pleas seeking interim relief. It will also decide whether the March 31 deadline is enough or whether a stay should be in place till it adjudicates on the validity of Aadhaar.
The Supreme Court will begin hearing the plea challenging the legality of the government’s unique identification number programme from January 17.
The Constitution bench, led by Chief Justice Dipak Misra, has been hearing several petitions seeking a stay on the Centre’s direction to link government services with the Aadhaar system. Besides Misra, the bench includes justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan.
The Bharatiya Janata Party-led government also requested the bench to extend the deadline to link cellphone numbers with Aadhaar to March 31. Last year, the court recorded the Centre’s submission that it will link all mobile numbers with Aadhaar by February 6.
On Tuesday, the government withdrew the deadline to link bank accounts with Aadhaar. This came days after it had told the court that it was willing to extend the deadline to compulsorily link Aadhaar to various services to March 31.
The clutch of petitions challenging the validity of Aadhaar based on privacy concerns returned to the Supreme Court’s agenda after its right to privacy judgment in August. Some petitioners had claimed that making the Aadhaar mandatory for services was illegal.
Appearing for the petitioners, senior advocate Shyam Diwan on Thursday argued that the Centre has consistently violated a clutch of orders issued by the Supreme Court, which made it clear that Aadhaar cannot be mandatory. “No person should suffer or be denied any service for want of Aadhaar till the matter is finally decided,” he said.
Diwan said the Centre continued to expand the use of the unique identification number without ever bothering to approach the court to amend orders that said Aadhaar was not mandatory. Even schools have made the document mandatory for scholarship.
“There is no legal basis to make Aadhaar mandatory for children since there was no scope for consent,” he added. People were even being denied HIV drugs for want of Aadhaar.
Interjecting, Attorney General KK Venugopal said he would not be able to defend all the notifications, as some of them were not issued by the Centre. He said the interim orders referred to were issued before the Aadhaar Act was enacted. The scenario has changed since a law now exists to back the programme. He also argued that after the judgment in the Aadhaar-Permanent Account Number linking matter, the interim orders mentioned were overridden by the Aadhaar Act.
Former Solicitor General Gopal Subramaniam said the interim orders were an exercise of judicial powers decisively in favour of ordinary citizens, who cannot be forced to give away personal data with no regard for their right to privacy. He also said that the basis of the orders were to protect voluntariness, which cannot be nullified by enacting a law. “The Centre has passed 139 notifications on Aadhaar that cover almost every aspect of a citizen’s life,” he charged.
When Justice DY Chandrachud pointed out that Section 7 of the Aadhaar Act allowed the government to make the programme mandatory. However, Subramanian said the court needs to decide whether such notifications under Section 7 can overrule judicial orders. “The notifications are not even a subordinate legislation,” he pointed out.
Senior advocate Arvind Datar said even if it is assumed that Section 7 allowed the government to make Aadhaar mandatory, it was confined to services made possible through the consolidated fund of India. Notifications such as making Aadhaar compulsory for death certificates do not fulfill this provision, he said.
Lawyer Anand Grover argued that the Centre has still not brought into effect a law on data protection. The data storage systems were also not foolproof, adequately exposed by the many data leaks that have taken place over the past few months. Also, private companies, including foreign ones, were allowed handle the data, a serious security risk involving personal information of citizens. The government is unwilling to share data on these companies under the Right to Information Act, he charged.
In a landmark ruling four months ago, the Supreme Court had declared privacy a fundamental right protected under Article 21 of the Constitution. This was seen as a major blow to the Centre’s push for Aadhaar. With the privacy question out of the way, the court resumed hearing the petitions regarding Aadhaar in the last week of November.
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