The Aadhaar linkages case continued before the Supreme Court constitution bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan on Wednesday (March 7).
While senior counsel Arvind Datar continued his submissions, another issue, mentioned in court in the first hour was looming large. This was about an appeal asking for an interim stay on the
CBSE’s decision to make Aadhaar mandatory for registration for the upcoming NEET exams.
The court directed tat Aadhaar cards were not essential while appearing for the NEET exams. This would have left out in the cold several aspiring candidates who do not have Aadhaar.
The court did say that examinees, whose applications have been rejected because of a lack of Aadhaar, despite a high court order staying this rule, cannot be held to be legal. The CJI, while addressing the respondents, said that the interim order needs to be followed, which is Aadhaar cannot be made mandatory.
The high court has dismissed their writ petition on the ground that the Supreme Court had made orders on the linking of Aadhaar with various documents and schemes.
The UIDAI had, in the morning, informed the court that it had not authorised the CBSE to enforce Aadhaar for enrolment. According to Attorney General K K Venugopal, who had taken directions from the UIDAI, said that like in Jammu and Kashmir, Meghalaya and Assam other identity proofs like passport, voter card and ration card can be used by the CBSE for enrolling.
The main issue
Datar said that this forced use of Aadhaar for availing of several services is amounting to almost coercion. He gave the example of a driving licence (Motor vehicles Act), where you will not be deprived of benefits accruing because you do not have a licence.
He made a clear point in this. He said: “If it wasn’t a money bill and had gone to the Rajya Sabha, Section 57 of the Aadhaar Act wouldn’t have been passed.”
[Section 57 says that the Act is “not to prevent use of Aadhaar number for other purposes under law. Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect…”]
Datar said: “Consent is said to be free without any coercion, but in the present scenario there’s a coercion; so much so that if your Aadhaar is not linked your account will be closed.”
He argues about whether SSN numbers should me made mode of identification. He read out the speeches of various leaders who have pointed out the negatives of having SSN number.
He said: “To enroll or not to enroll is my wish. When I exercise this right, I do not exercise in reference to Sec.3 of the Aadhaar Act, but because of my right to privacy. Under rule of law, is it permissible to coerce at every stage? This is what your lordships must decide.
“Sec.8(2)(a) is rendered irrelevant now, because the consent part has been removed by authorities under this section and will be closed on this March 31,” he said.
He explained the meaning of the word “law”. He said: “Law can be either a primary legislation or a delegated legislation as given by this court. Where are we going, tomorrow you’ll say you cannot go to Jama Masjid because you don’t have an Aadhaar number.”
His submissions were on Article 14.
“We are talking about subsidies and benefits. If one person has a pensioner’s card or a disability identity card that would mean what? Once i get my Aadhaar card, I don’t require anything? By making it compulsory, the right to livelihood has become contingent to a probable faulty method.
He pointed to Rule 14 of the Aadhaar rules. Exclusion from enrolling in Aadhaar due to technical reason. “But specific reasons are not mentioned,” he said.
He said Aadhaar is a choice. “But if i don’t take Aadhaar, I cannot link it with PAN card which has been mandated. This will mean as if I never had a PAN card because it will cancel my PAN card. After Puttuswamy case, this is my decision with my privacy, on whether to take Aadhaar or not. Article 14,19 and 21 entitles me not to take Aadhaar.
While pointing out the poor structure of the software Datar gave a real life example. “Someone I know who doesn’t want to link Aadhaar rebelliously entered 0000 0000 0000 as his Aadhaar number and shockingly the software accepted this and he got his refund,” he said.
Datar pointed out various orders of the court. “Twenty nine applications were made for relaxing the orders of the court which prayed that Aadhaar must not be mandatory for filling of forms. It is voluntary,” he said.
He also said: “A total of 2,000 applicants could not fill forms for their exams in state of Gujarat, because they did not have Aadhaar.
It was at this point that the CJI said that this writ was useless. Justice Misra said that the high court’s interim stay, saying Aadhaar cannot be made mandatory will have to be abided by.
Justice Chandrachud also made it clear that the interim order passed in October 2015 wil stay till the time matter is disposed off.
Extension of deadline
One senior advocate also mentioned that the deadline for linking of documents to Aadhaar must also be extended beyond March 31.
Senior advocate P Chidambaram started his submissions. He said that the Aadhaar bill has been passed as a money bill so as to bypass the Rajya Sabha. He pointed to Article 110 and he pointed out the difference between 117 (financial bill) and 110 (money bill). He said that a financial bill can be a bill which is related to provisions from a-f and others also but a money bill can only be related to provisions between a-f.
A money bill is a subset of financial bill which is a subset of a bill. He submits that nothing escapes in a guise of a money bill.
The matter continues.
-India Legal Bureau