The unanimous order of the five-judge constitution bench of the Supreme Court in the prayer for interim relief in the Aadhaar case, falls short of expectations for several reasons.
The order – written by Justice D.Y.Chandrachud, on behalf of himself, the Chief Justice of India, Dipak Misra and justices A.K.Sikri, A.M.Khanwilkar and Ashok Bhushan – fails to provide any effective interim relief apart from extending the deadline for Aadhaar linkage for all purposes until March 31, 2018.
Thus, the bench has accepted attorney general K.K.Venugopal’s statement that the Centre has extended the deadline for Aadhaar linkage with all schemes of its ministries and departments until March 31, 2018. As far as Aadhaar linkage with existing bank accounts is concerned, the Centre proposed that the last date for the completion of the process might be extended to March 31, 2018. The bench accepted this proposal too and drafted its order accordingly.
The bench perhaps assumed that since it has scheduled the hearing of the main petitions challenging the Aadhaar Act from January 17, 2018, it would be able to resolve the issues at the earliest, before the fresh deadline announced by the Centre nears. “This will ensure clarity for citizens on the one hand and for the Union and the state governments and the instrumentalities on the other hand”, the bench noted in its order.
What has been left unanswered however is whether the Centre and state governments can, in the interim, continue to essentially make Aadhaar mandatory by insisting that people produce proof of having applied for an Aadhaar number.
The order, while keeping silent on this aspect, has largely endorsed this concern nevertheless when it comes to opening new bank accounts.
Thus the order reads:
“Insofar as the new bank accounts are concerned, while the last date for completing the process of Aadhaar linking may be extended until 31 March 2018, persons desirous to open new accounts shall produce proof to the bank of an application having been submitted for obtaining an Aadhaar card together with the application number which shall be supplied to the account opening bank.”
That such an order would defeat the very purpose of seeking interim relief is obvious to anyone who followed the arguments before the bench on Thursday. There is nothing to stop the Centre and states from insisting on similar proof of application having been submitted for obtaining an Aadhaar card together with the application number for other benefits and services because the court itself has endorsed such an approach.
For inexplicable reasons, the bench left the question of whether the Centre and the states could make the the Aadhaar enrolment ID mandatory for benefits and services, other than the opening of new bank accounts, vague. On one hand, it could be suggested that as the bench specifically mentioned this in the case of opening of new bank accounts, it could be inferred that a similar approach cannot be adopted by the Centre or the States in the case of extension of other benefits or services. After all, if the court wanted it to be so, it could have mentioned it clearly.
On the other hand, the silence of the order on this question could be easily misinterpreted by the Centre and the states in favour of compulsion. Besides, the court has not given any reasons why such proof of submission of application for obtaining an Aadhaar number is mandatory only for opening of new bank accounts.
The bench has displayed similar callousness in the case of mandatory requirement of Aadhaar-based E-KYC for mobile phone subscribers. The Centre claims that a bench of two judges of the Supreme Court in Lokniti Foundation v Union of India and another, made it mandatory on February 6 2017. Although the constitution bench has extended the deadline for this purpose to March 31, 2018, it has chosen to ignore the criticism expressed by the petitioners’ counsel, Shyam Divan that the two-judge bench’s order in that case went against the earlier constitution bench’s order of October 15, 2015 – because mobile phone subscriptions are not one of the six schemes approved for use of Aadhaar card in the 2015 order.
Divan also argued that there is nothing in the February 6, 2017 order that mandates the linking of mobile with Aadhaar number. There was no answer to this from the attorney general on Thursday. Therefore, how did the constitution bench condone the aberration of the two-judge bench’s order of February 6, 2017? Mere extension of deadline for this purpose, from February 6, 2018 to March 31, 2018, cannot correct it.
A clarification, therefore, would have been in order.
The constitution bench also missed another opportunity to correct a similar aberration, caused by a two-judge bench in Binoy Viswam v Union of India, in the challenge to the validity of Section 139AA of the Income Tax Act, which made linking of Aadhaar with PAN mandatory for filing of income tax returns. The judgment in Binoy Viswam has been interpreted in different manners, with some claiming that it is flawed because the petitioners were deprived of challenging the impugned provision on the privacy ground because the nine-judge constitution bench to consider the right to privacy was not yet constituted then. The Central Board of Direct Taxes, interpreting the judgment, had clarified that persons without Aadhaar must obtain one if they wish to file their tax returns. For those, who already have Aadhaar, there appeared to be no option, but to link their PAN with their Aadhaar numbers.
The judgment in Binoy Viswam has given relief only in terms of the consequences of not furnishing the Aadhaar number while filing returns, it appears. Still, a five -judge bench, assembling after the nine-judge bench judgment on privacy, could have moulded the interim relief in accordance with the privacy judgment, in the matter of linking PAN with Aadhaar, without making it mandatory.
Instead, the Friday order of the constitution bench reads tersely, without any reasoning: “We also clarify that in so far as the provisions of Section 139AA of the Income Tax Act, 1961 are concerned, the matter stands governed by the judgment of this Court in Binoy Visman (sic) v Union of India.”
Indeed, today’s order faithfully reproduces the primary submission of the petitioners as follows:
(ii) the Union Government was directed to strictly follow the earlier orders of this Court commencing from 23 September 2013; and
(iii) the Aadhaar card scheme was to be purely voluntary and could not be made mandatory until the matter is finally decided by this Court.
The six schemes mentioned in the previous orders are the public distribution scheme (PDS), LPG distribution scheme, the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old age pensions, widow pensions, disability pensions), the Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO).
The order also quotes Shyam Divan, senior counsel for the petitioners, as having urged that since the interim order dated March 15, 2015 governs the field, it was the obligation of the Centre to seek a variation of the interim directions after the enactment of the Aadhaar Act, 2016 before making it mandatory to uplink or provide details of the Unique Identification Number/Aadhaar card for all purposes.
The order quotes another senior counsel for the petitioner, Gopal Subramanium, as having advanced the submission that the issue involves the paramountcy of the court and of the judicial process. “In the submission of the learned counsel, the exercise of the judicial power in the form of the interim order dated 15 October 2015 (and the earlier orders) was to insulate citizens against any form of compulsion, this being in aid of protecting their fundamental rights”, the order adds.
As against these submissions of the petitioners, attorney general K.K.Venugopal urged that the interim directions were issued in the absence of a legislative framework. “After Parliament has enacted the Aadhaar Act, 2016 (which came into force on 12 July 2016), the interim orders would, in his submission, not pose any impediment to enforcing the provisions of the law, duly enacted. Moreover, the reasonableness of each notification would have to be justified by the department concerned”, the order reads.
It is reasonable to expect that the bench might require more time to resolve these contending positions in law. But as senior counsel Sanjay Hegde, who was representing one of the petitioners, argued before the bench on Thursday, interim relief should take into account the balance of convenience, and the irretrievable injustice that might result if the Aadhaar card is permitted to be mandatory, even for the interregnum, till the Supreme Court resolves the issue finally one way or the other. Viewed from this perspective, today’s order is far from satisfactory.
As another senior counsel for the petitioners, Meenakshi Arora, submitted before the bench on Thursday, heavens would not have fallen, if the court granted a stay on the 139 circulars, brought to its notice, for violating its own previous directive on keeping Aadhaar enrolment voluntary.