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Legal Tussle Over Mandatory-Voluntary Nature of Aadhaar Kicks Off Next Week

On October 7, the Supreme Court will begin to hear long-pending petitions that deal with a number of issues surrounding the biometric authentication system.

aadhar

The petitions deal with deal with the legality of mass collection of citizen data, potential privacy violations and whether or not Aadhaar enrolment could be made mandatory. Credit: Reuters

New Delhi: Nearly one year after the Supreme Court declared that Aadhaar enrolment would be “purely voluntary”, the stage is set again for a set of court hearings that will make or break the Modi government’s aim of making Aadhaar integration mainstream.

On October 7, the Supreme Court will hear the first of a group of contempt and other long-pending petitions that deal with a number of issues surrounding the biometric authentication system.

These petitions – filed by prominent members of civil society such as Aruna Roy, Bezwada Wilson and Justice (Retd) Puttassamy, and represented legally by senior advocates such as Soli Sorabjee, Shyam Divan and Gopal Subramanium – deal with the legality of mass collection of citizen data, potential privacy violations and finally whether or not Aadhaar enrolment could be made mandatory.

The first contempt petition to be heard was filed by Colonel (retd) Mathew Thomas through advocate Aishwarya Bhati; the senior advocate for the petition is former solicitor general Gopal Subramanium.

“Ours is a plain legal contempt petition against heads of [two] government bodies and institutions. The first is the Indian Oil Corporation which has issued circulars for Aadhaar seeding in the case of LPG subsidies and the other is the University Grants Commission which has tried to make Aadhaar mandatory for scholarships,” said Prasanna S., a lawyer who is part of Bhati’s legal team.

In early 2014, the Indian Oil Corporation made Aadhaar enrolment mandatory in a de facto manner; officials pointed out to reporters at the time while there were no public statements that declared Aadhaar was mandatory to receive subsidies, there were also “no other methods to receive or avail of the LPG subsidy”. The University Grants Commission has also similarly flip-flopped over the issue of Aadhaar in the last few months.

“Our petition was actually listed for the Friday before last, but was deleted and taken off the list without us receiving an official reason. It is now listed for a hearing next Friday although it could get preponed to next Monday,” Prasanna said.

Need for contempt

Contempt petitions like this are aimed at creating deterrence, according to legal experts. Why is there a need for deterrence though?

Over the last year, since the Supreme Court’s interim order, there has been much confusion over to what extent the Aadhaar card system can be applied in government programmes. In late 2015 the Supreme Court clearly stated that Aadhaar enrolment had to remain voluntary until the “court decided one way or the other”. A few weeks ago, however, the government notified the Aadhaar Act, which according to Attorney General Mukul Rohatagi deals with the Supreme Court’s concerns and paves the way for mandatory usage.

A Supreme Court order last week last week that restricted the mandatory usage of Aadhaar when it comes to disbursal of student scholarships appears to reaffirm its earlier order and raise doubts over whether the efficacy of the Aadhaar Act.

More importantly, other issues such as privacy and the legality of widespread data collection have yet to be addressed by the Supreme Court. In August 2015, Rohatagi raised doubts over the “existence of a fundamental right to privacy” during hearings on the Aadhaar system and ultimately it was decided that these issues would be decided by a larger bench.

The upcoming hearings, according to legal experts and government officials The Wire spoke with, will decide the future of the Aadhaar identification system in India. A partial list of the petitions pending before the Supreme Court are listed below:

Petition Petitioner(s) Senior Advocate(s)
WP (c) 494/2012 Justice (Retd) Puttassamy Anil Divan and Soli Sorabjee
WP (C) 829/2012 SG Vombatkere & Bezwada Wilson Shyam Divan
W.P.(C) 833/2013 Aruna Roy and Nikhil Dey Nithya Ramakrishnan
W.P. (C) 932/2013 Nagrik Chetna Manch Anup Bhambhani
T.C.(C) 152/2013 Vikram Crishna Meenakshi Arora
T.C.(C) 151/2013 S. Raju
W.P.(C) 37/2015 Mathew Thomas Gopal Subramanium

Another crucial petition about the Aadhaar Act specifically has been filed by Rajya Sabha MP Jairam Ramesh, which questions the act’s money bill route is also expected to be heard in the coming month.