The apex court’s inability to expeditiously decide on the Aadhaar scheme’s constitutionality has allowed the government to violate with impunity the promise not to make it mandatory

~By Venkatasubramanian

Making a public policy like the Aadhaar scheme, which is under legal challenge before the Supreme Court, a fait accompli, appears to be the current strategy adopted by the government. In this, the Supreme Court is seen as a hapless spectator since it has been unable to constitute a Constitution Bench, for want of judges, to expeditiously dispose of challenges to the Aadhaar scheme.

Making Aadhaar mandatory for the students availing the Mid Day Meal Scheme in schools, as the Union Human Resources Development Ministry announced on February 28, is one such manifestation of the strategy, which, seen with similar steps undertaken by other Union Ministries in recent weeks, has raised concerns within the civil society about the government’s intentions.

The Mid Day Meal Scheme in schools, administered by the Union Human Resources Development Ministry, aims to improve nutritional status of children studying in classes I to VIII by providing them hot cooked meals during working days and during summer vacation in drought affected areas. The scheme covers government or government-aided schools, special training centres, madrasas and schools supported by the Sarva Shiksha Abhiyan.

On February 28, the HRD Ministry announced that students desirous of availing the benefits under the Mid Day Meal Scheme, are required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication. It said that those who do not possess an Aadhaar number or have not yet enrolled for Aadhaar shall have to apply for it by June 30, and produce a copy of her/his request made for enrolment. The ministry asked the States and the Union territory administrations to give this notification wide publicity, and create Aadhaar enrolment facilities at convenient locations.

No doubt, the beneficiaries of the Mid Day Meal Scheme are given the option of submitting alternative identification documents, in case they do not obtain the Aadhaar enrolment before June 30. But these documents are permissible only in addition to the proof of request made for enrolment, making it clear that the universalisation of Aadhaar enrolment is the government’s objective.

The HRD Ministry issued similar notifications to ensure enrolment of Aadhaar for the beneficiaries of Saakshar Bharat and Sarva Shiksha Abhiyan.

Earlier, the Ministry of Social Justice and Empowerment, notified on February 16 that whoever is desirous of receiving central scholarship benefit and are not yet enrolled for Aadhaar have to apply for enrolment by March 31, and provide a copy of this request along with any one of the other specified identity proofs.

The ministry also issued similar notifications requiring Aadhaar enrolment for beneficiaries of the National Action Plan for Skill Training of Persons with Disabilities and Scheme of Assistance to Disabled Persons for purchase and, or, fitting of aids and appliances.

Other ministries—Health and Family Welfare, Labour and Employment, and Women and Child Development—made similar announcements by asking prospective beneficiaries of their schemes to obtain enrolment within a deadline, or at least produce proof of their applying for it.

These announcements, all made in February and March, raised privacy of personal data concerns, which forced the Supreme Court to refer the initial challenges to the Aadhaar Scheme to a Constitution Bench. Activists found it outrageous that vulnerable groups like children in the 6-14 age group, women rescued from sexual trafficking, and disabled persons seeking scholarships or state-funded appliances are being coerced by the government to seek Aadhaar enrolment.

That several ministries have made enrolment near-mandatory around the same time for extending benefits of its schemes should make one wonder about its timing. The Supreme Court’s nine-Judge Constitution Bench is likely to begin its hearing of the challenges to Aadhaar on the grounds of right to privacy, from April.

If the government is able to increase Aadhaar’s coverage of the population substantially by then, the Supreme Court may not find it feasible to reverse it. In that event, the case itself will become infructuous, or even academic merely looking at whether there is indeed a right to privacy for Indian citizens and whether it is a fundamental right.

It is, therefore, interim relief from the Courts that the petitioners should hope for if they have to stop the government from going ahead with its universalisation of Aadhaar enrolment by citing its legal obligation under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, which came into effect from September 12, 2016.

“The use of Aadhaar as identifier for delivery of services or benefits or subsidies simplifies the Government delivery processes, brings in transparency and efficiency, and enables beneficiaries to get their entitlements directly in a convenient and seamless manner. Aadhaar obviates the need for producing multiple documents to prove one’s identity”, the government routinely claims in every notification requiring Aadhaar enrolment from different classes of its citizens, to avail benefits of its schemes. The requirement of Aadhaar enrolment for children’s Mid Day Meal Scheme, is clearly inconsistent with any of these stated goals.

The Supreme Court’s five-Judge Constitution Bench, as an interim measure, held on October 15, 2015 in Paragraph 5 as follows: “The Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.”

The bench modified its August 11, 2015 order, to permit the use of Aadhaar cards only in six schemes, namely, Public Distribution Scheme, LPG Distribution Scheme, Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions), Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO).

On September 14, 2016, a Supreme court bench of  Justices V Gopala Gowda and Adarsh Kumar Goel, on a plea by All Bengal Minority Students Council, stayed the operation and implementation of the central government’s letters to states, making the submission of Aadhaar mandatory for Pre-Matric Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-cum-Means Scholarship Scheme, and directed the Union Ministry of Electronics and Information Technology, not to make Aadhaar number as a mandatory condition for the student registration form for the National Scholarship Portal of Ministry of Electronics and Information Technology.

The enactment of Aadhaar Act, through a Money Bill, which enables a Bill’s passage in Parliament, even without the support of the Rajya Sabha, has also been challenged in the Supreme Court, as unconstitutional. Therefore, there are clear legal precedents for the Supreme Court to stay the latest notifications till it hears the challenges on merits.