Collecting iris scans for the Aadhaar Card. Photo: Kannanshanmugham“It is not mandatory for a citizen to obtain an Aadhaar card”, stated the Supreme Court on the 11th of August, 2015. The court was considering whether the Constitution guarantees a right to privacy and whether the Aadhaar card scheme infringes such right. While the state argued that the legal position regarding the existence of the fundamental right to privacy is “doubtful”, the petitioners submitted that “it is too late in the day for the Union of India to argue that the constitution of India does not recognise privacy as an aspect of the liberty under Article 21 of the constitution of India.” The three judge bench referred this “apparent unresolved contradiction” to a five judge bench which remains unresolved till date.Directions of the Supreme CourtIn the interim, the court gave the following directions –The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.”Gas subsidy and PDSHowever the judgment is not as clear as the opening sentence suggests. Directions 1 and 2 point unequivocally to the conclusion that the Aadhaar card is not mandatory for a citizen and that the conferral of any benefit on citizens is not dependent on the Aadhaar card.This means that I am eligible for my gas subsidy without linking my Aadhaar card to my gas connection. However direction number 3 seems to suggest not. It states that “The Aadhaar card may … be used for the purpose of the LPG Distribution Scheme”, which could mean that my service provider could demand an Aadhaar card for refund of subsidy. The direction no. 3 also states “The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrain, etc. and cooking fuel, such as kerosene”. Extending the gas subsidy analogy, an argument could be made that the Government of India could impose a requirement for an Aadhaar card for the purposes of distribution of food grains etc, cooking fuel such as kerosene within the Public Distribution Scheme.What, then, does this judgement really mean? Does this mean that the Aadhaar card is not a mandatory document for obtaining any benefits at all or does it mean that the Aadhaar card may become a mandatory document for the gas and the Public Distribution System? If the latter is true then the Court has effectively made the Aadhaar card mandatory despite clearly stating that it is not compulsory. After all, there is no house that does not need a gas connection! Additionally in so doing, the court has not clarified on any procedure that the government should follow for the collection and storage of the information. In other words, it is unclear what rules of procedure and rules of confidentiality bind the “private agencies” that collect information for the Unique Identification Authority of India.However, if the former is true then direction no. 3 is redundant and should be struck off by the higher bench.What about criminal investigations?The Supreme Court has also stated that the Aadhaar information can be used for criminal investigation when directed by a court. This direction leaves at least 3 questions unanswered: 1. when can a court issue such a direction- can a court suo motu ask the investigating authority to use the Aadhaar information in criminal cases or will such direction be given only on an application made by the investigating authority? 2. Against whom can this direction be issued- just the accused or anyone connected with the case; 3. How and at which stage will the information be used in the investigation?Finally, consider the explicit wording of the Aadhaar form, which asks the applicant to say yes or no to the following:“I have no objection to the UIDAI sharing information provided by me to the UIDAI with agencies engaged in delivery of public services including welfare services.”The Aadhaar form thus gives the applicant an option to allow or to refuse the UIDAI to share his or her information for public and welfare services. Despite this, does the court (direction no. 4) then mean to say that irrespective of their permission, the court can make it public for investigation?Clear stand neededAs of now, nothing has changed even while the Supreme Court has directed the union to publicise the fact that that it is not mandatory for a citizen to obtain an Aadhaar card. Most of the services do prompt a person to link their Aadhaar card to their service accounts. Even the e-filing of IT returns prompts the tax payer on the homepage to link the Aadhaar card for the purposes of e-verification without enlisting the other options of e-verification in the homepage itself.The task of the 5 bench entrusted with the question of privacy is not just to rule on the Constitutional ambiguity surrounding the law but also to make a decision, being completely mindful of the implications of the Aadhaar card – a card that carries and needs the most intimate information about a person- biometric and iris scans – without any legal basis for its existence. If the right to privacy is indeed of any value, then the court cannot give with one hand (direction no. 1 and 2) what it takes away from the other (direction no. 3 and 4).Upasana Garnaik and Surabhi Shukla are Assistant Professors at Jindal Global Law School, Haryana.
