Aadhaar on trial: The litigations around Aadhaar

The development of Aadhaar over the years has opened a Pandora’s box of litigations against its various claims and processes that range on the spectrum from privacy rights to compulsory carrying of Aadhaar cards by drivers. Prior to the drafting and operation of the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 (hereinafter Aadhaar Act), the Aadhaar scheme was challenged by many petitions, tagged together under the case of K.S. Puttaswamy & Ors. v. Union of India & Ors. However, upon the notification of the Act and various Regulations therewith, fresh petitions have been filed challenging the Aadhaar Act and the Rules in S.G. Vombatkere and Anr. v. Union of India & Ors. Apart from these, there have been a multitude of petitions filed around the Aadhaar scheme and its usage by various state agencies in several forums across the country.

(A detailed time-line of the Aadhaar scheme can be accessed here)

Initial petitions: The pending case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors.(W.P.(C) 494/2012), was the first in the series of cases challenging the Aadhaar scheme. The case, along with 15 other matters tagged along with it,is currently pending before the Apex Court, after being referred to the Constitution Bench in 2015. The latest orders issued in this case on 11^th August and 15^th October, 2015 effectively held that until the issues in the pending case can be decided with finality by the Supreme Court, the use of Aadhaar card is not only purely voluntary, but can only be used on this voluntary basis for six Government schemes i.e. Public Distribution System, LPG, Mahatma Gandhi National Rural Employment Guarantee Act, Employees’ Providend Fund Organization, Pension scheme, and Prime Minister’s Jan Dhan Yojna. Moreover, it also mentioned that no one should be denied any services or benefits that they are rightfully entitled to for the lack of an Aadhaar card.

(Our notes from hearings of this case can be accessed here)

Contempt: In the year that followed the above mentioned orders, there have been innumerable news reports of activities that would tantamount to contempt of these orders. We have attempted to record the violations of these orders where Government agencies and private bodies have not only used Aadhaar for purposes ranging from applying for Padma Shri awards to filing Income Tax appeals, but have also made it mandatory in many cases. A non exhaustive catalog created by us from news reports on these violations can be accessed here. Owing to the massive scale of these incidents, contempt petitions were recently filed in the Supreme Court, in the case of Mathew Thomas v. K.D. Tripathi and Anr. (Contempt Petition(C) 444/2016). Col. Mathew Thomas is also one of the petitioners in the cases tagged under the above-mentioned K.S. Puttaswamy v. Union of India. As these claims arise from the orders given in K.S. Puttaswamy v. Union of India, the Supreme court has connected the contempt proceedings to it and are thereby, pending further listing and hearing.

Scholarship row: The Ministry of Minority Affairs, through a letter dated 14^th July, 2016 had made Aadhaar a mandatory requirement to apply for the Pre-Matric, Post Matric, and Merit Scholarship schemes for the years 2016-2017, along with making the registration possible solely through an online platform. This is a scheme that provides scholarships to students of recognized minority communities for high school education on the basis of certain criteria. This order was challenged before the Supreme Court as well as the Delhi High Court in two separate petitions.

• Supreme Court: In the case of All Bengal Minority Students Council and Anr. v. Union of India and Anr. (W.P.(C) 686/2016), the Supreme Court drew attention to the last order by the five Judge Bench on 15^th October, 2015 in the case of K.S. Puttaswamy v. Union of India, where it made the use of Aadhaar card purely voluntary, and ordered to stay the implementation of the letters issued by the Ministry of Minority Affairs that made Aadhaar compulsory for applying for Pre matric, Post matric and Merit based scholarships. In this order dated 14^th September, 2016, a two Judge Bench also asked the Ministry of Electronics and Information Technology to remove the mandatory requirement for Aadhaar from the National Scholarship Portal as well.

• Delhi High Court: In a petition filed by the Nasimuddin Educational and Charitable Trust (W.P(C) 7931/2016) that challenged the same orders by the Ministry of Minority Affairs, the Delhi High Court acknowledged the order passed by the Supreme Court on the issue in the above mentioned case. However, it recognized that the Apex Court had not provided any insight on the mandatory online application for the scholarships. Therefore, on the exclusionary nature of the application procedure by limiting it to only online applications, the Delhi High Court has agreed to hear the case on 7^th December, 2016 subsequent to the filing of a response by the Union of India and other respondents. Although the Delhi High Court website states that this case was disposed off on 7^th December, 2016, details of any order or judgment are unavailable on their online portal.

Mandatory for PDS: It was reported that upon Aadhaar being made mandatory by Karnataka State Government on 29^th July, 2016 to avail benefits of Public Distribution System (PDS), a petition was filed challenging it. The High Court has subsequently as per the reports issued notice to the State and district governments in this regard.

(We have been unable to locate and procure the official records/ documents of the case, and would appreciate assistance/information regarding them)

Need to carry Aadhaar card while driving: In a press release, reportedly issued by the Cyberabad Police Commissionerate on 23^rd July, it was said that Aadhaar card has been made mandatory to be carried alongside other relevant documents for people driving any vehicle in Telangana. Challenging this compulsion, the Hyderabad High Court in an order reported to be issued on 18^th October, 2016 has asked the Police commissioner to justify the legal basis for mandating carrying of Aadhaar card for all drivers.

(We have been unable to locate and procure the official records/ documents of the case, and would appreciate assistance/information regarding them)

Challenge to Aadhaar Act: The Aadhaar Act was proposed in the Lok Sabha by the Government as a money Bill as the core component of the Act was sought to be the distribution and dispersal of subsidies and benefits from the Consolidated Fund of India. It was passed in the Parliament on 1^st March, 2016. (Our report on the parliamentary proceedings and discussions on the Aadhaar Bill can be accessed here)

The challenges to this Act have been two fold, with one petition challenging the passing of this Bill as a money Bill, and the second one alleging that the Act and the subsequent regulations passed therein are unconstitutional. A brief synopsis of these two petitions pending in the Supreme Court is as follows:

• Money Bill challenge: Jairam Ramesh, the former Union Rural Development Minister filed a public interest litigation in the Supreme Court challenging the passing of the Aadhaar Act as a money Bill, alleging that the Bill did not qualify for an action under Article 110 of the Constitution that provided criteria for categorizing Bills as money Bills. In the hearing that took place on 10^th May, 2016, it was argued in the case of Jairam Ramesh v. Union of India (W.P.(C) 231/2016) that the Aadhaar Act did not comprise solely of management of funds of the Consolidated Fund of India, instead it was only a part of the Bill that included amongst other things, the roles and responsibilities of enrollment agencies, requesting entities, and authentication agencies, and the information to be given to users. The Attorney General argued that as the determination of a Bill as money Bill is at the discretion of the Lok Sabha Speaker, it was not open for judicial review by the Supreme Court. The case is next scheduled for hearing on 13^th February, 2017.

• Challenge to the Aadhaar Act: A fresh petition, S.G. Vombatkere & Anr. v. Union of India & Ors. (W.P.(C) 797/2016) challenging the Aadhaar Act and the subsequent Rules and Regulations released therein was listed in the Supreme court on 21^st October, 2016. However, as the petition was listed before a bench that included Justice L.N. Rao, who had previously represented the Union of India as the Additional Solicitor General in the earlier Aadhaar petitions, the Supreme Court ordered the matter to be listed before a different bench to eliminate any conflict of interest. Further, at a subsequent hearing that took place on 28^th October, 2016, notice was issued to the Union of India in this case by the Apex Court. On 5th January, 2017, this case was mentioned in front of CJI Khehar, and Justices N V Ramana, and DY Chandrachud, to be heard on an urgent basis due to the privacy concerns involved and the collection of biometric data by private entities as well. However, the Supreme Court refused to expedite the process and reportedly said, “We are not inclined to give immediate hearing as there are limited resources but biometric data collection by private agencies is not a great idea.”

Watch this space for updates on these cases/other cases around the Aadhaar scheme.

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