Constitutional Position Of Aadhaar In June 2017
Aadhaar involves serious Constitutional issues that require urgent and detailed analysis by Supreme Court of India. Unfortunately, Supreme Court is more interested in dragging the case so that Indian Government can force Unconstitutional Aadhaar upon Indians illegally and in an Unconstitutional manner.
We have analysed this Constitutional position of Aadhaar that Supreme Court is avoiding. This is as follows:
(8) Hacking of Aadhaar is Hacking of Life of a Person and not just his Identity, etc. We would add more articles to this list for the larger benefit of all concerned.
People can rely upon these constitutional interpretations whether Supreme Court decide them or not in due course of its constitutional duties.
Interested stakeholders may please see the following articles also in this regard:
(11) The current and present dangers of Aadhaar hacking, etc. More articles would be added in due course of time.
On October 15, 2015, a Constitution Bench of Supreme Court held (pdf) as follows (page 12, para 4 and 5):
4. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013.
5. We will also make it clear that 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 interim order of Constitution Bench of Supreme Court is still in force and is binding till it is overruled by a higher bench of Supreme Court. A division bench of Supreme Court cannot decide contrary to that interim order.
So Supreme Court held that Aadhaar is optional for the following decisions:
If any division bench decides to the contrary, that decision would be simply Per Incuriam and not binding.
Examples of Per Incuriam judgments of Supreme Court if Aadhaar is not optional are:
Cases where Aadhaar is not mandatory even after issuance of any notification, circular, rules, guidelines, etc by Indian Government or its Ministries are the following:
So the “Constitutional Position” regarding Aadhaar as on June 2017 is that Aadhaar is “Absolutely Optional” for enrollment, use, seeding, deseeding, etc. Neither Indian Government nor a division bench of Supreme Court can decide to the contrary due to this well established Constitutional Position.
Update: On 19-05-2017, Supreme Court heard a petition seeking stay of Aadhaar Act 2016 and notifications made under it and deciding constitutionality of making Aadhaar mandatory under the Aadhaar Act, 2016 despite the contrary orders of Constitution Bench of Supreme Court. The matter has been posted for 27-06-2017 on which date either the deadline of 30-06-2017 would be extended by Government or Aadhaar would be declared optional by Supreme Court under Aadhaar Act, 2016.
Update 21-04-2017: On 21-04-2017, the Supreme Court Of India asked Indian Govt how it can make Aadhaar mandatory when the Court has declared it to be optional. Thus, the Supreme Court has reiterated its position on Aadhaar that neither Central Govt nor State Govts can make Aadhaar mandatory till the Supreme Court decides the issue one way or other. Aadhaar is optional even on 21-04-2017 and would remain so even after this date as Supreme Court would never declare it legal due to its clear and apparent unconstitutional nature.
Previously on 27-03-2017, the Supreme Court reiterated the long affirmed position of Supreme Court that Aadhaar is optional for all services whether welfare, non-welfare, government, private, etc. This is the correct legal position and legal interpretation even after the Aadhaar Act and Finance Bill have been passed as they have no legal bearing upon the Aadhaar writ petitions whatsoever.
Thus, the correct legal position and legal interpretation regarding Aadhaar till 21-04-2017 is that Aadhaar is absolutely optional for every possible service and activity that can exist on earth.
Aadhaar is the most controversial project of India as it violates human rights and civil liberties in cyberspace. In fact, if you speak against Aadhaar project at social media platforms like Twitter, your tweets would be censored with impunity. Since its inception, Aadhaar project is a heavily censored subject in India. At the time of writing this post, Twitter is still censoring dissenting tweets regarding Aadhaar.
The dissenting tweets regarding Digital India are also censored by Twitter in real time and almost all of them are censored to give a positive image of Digital India project. We have written an article titled “Digital India and Aadhaar Related Critical Policy Suggestions and Views of Praveen Dalal” where all the censored dissenting tweets about Aadhaar and Digital India projects have been catalogued for ready reference.
Aadhaar has also been clubbed with Digital India project and that had made the combination the biggest digital panopticon of human race. This digital panopticon of India must be urgently declared unconstitutional by Indian Supreme Court. Similarly, Aadhaar project of India must also be declared unconstitutional by Indian Supreme Court. Despite the clear directions (PDF) of Supreme Court, both Central and State Government have made Aadhaar compulsory for various services. This is not only contempt of court but also a clear violation of Constitutional provisions and safeguards. For instance, Digital Locker tied up with Aadhaar is illegal and would not serve Digital India.
The Central Government is lying before the Supreme Court by claiming that Aadhaar is not mandatory for government services. The reality is that Aadhaar has been made compulsory for all government services directly as well as indirectly. Supreme Court of India has taken a stringent view against this process of making Aadhaar compulsory. It has directed that Aadhaar cannot be made compulsory for government services and any authority violating this direction of Supreme Court would be taken to task.
Supreme Court on Monday reiterated its earlier order that Aadhaar card is not compulsory and added that officials who insist on them will be taken to task. A Bench of Justices J. Chelameswar, S.A. Bobde and C. Nagappan clarified that demands made by officials for Aadhaar card is in clear violation of the Supreme Court’s interim order of September 23, 2013. In the 2013 order, the apex court had directed that “no person should suffer for not getting the Aadhaar card, inspite of the fact that some authority had issued a circular making it mandatory”.
“It is a matter of great public importance. The issue has serious implication in terms of Constitution. Notwithstanding the court’s order, there is insistence for Aadhaar. There is complete apathy on the part of officials,” senior advocate Gopal Subramaniam, representing one of the petitioners and Bangalore-resident, Mathew Thomas, submitted.
As an example, he referred to NCT government’s notification on March 9, 2015, insisting that couples require Aadhaar cards to get their marriage registered under the Special Marriage Act. In fact, senior advocate Anil Divan pointed out that the Bombay High Court Registrar had recently received an official communication asking him to make Aadhaar mandatory for disbursal of salary to staff and even judges.
Mr. Subramanium argued that collection of personal data of residents of India under the Aadhaar scheme is not exactly a government activity, but outsourced to private contractors. “On the surface it (Aadhaar) is a simple document of identity, but it has linkages by means of iris scans and biometric details. God forbid if identities are exchanged or mistaken. The Executive’s scheme involves private partners. Who are these private partners?” Mr. Subramanium submitted.
Submitting how the ordinary man is now prone to the perils of identity fraud, Mr. Subramanium said the “Sovereign State also has the duty to protect its citizens, to protect his identity, his personal information against possible misuse”.
“You better advise the States, if the officials insist, it would have consequences. We will take them to task. This is absolutely not right,” Justice Chelameswar observed.