Proceedings Before Supreme Court For Aadhaar Act On 27-06-2017 And 07-07-2017: Aadhaar Not Mandatory For Welfare Services

Supreme Court Of IndiaUpdate: Hearing On 07-07-2017 For Petitions Under Aadhaar Act, 2016

The Three Judge Bench of Supreme Court maintained the Status Quo about Aadhaar as pronounced by the Constitution Bench of Supreme Court in 2015. Thus, Aadhaar presently remains optional and those not having Aadhaar or not prefer to give it would not be denied any benefits or services.

The Three Judge Bench has also asked the petitioners to approach the CJI and request for an early constitution of the Constitution Bench. However, an assurance has been given that in case of non constitution or delay in constituting of such Constitution Bench, petitioners are free to approach the Three Judge Bench for interim reliefs.

In short, no services or benefits would be denied to any person for either not possessing or not giving his/her Aadhaar till the matter is decided by the Constitution Bench or an interim order is passed by the Three Judge Bench of Supreme Court.

Proceeding On 27-06-2017 For Petitions Under Aadhaar Act, 2016

The much awaited date of 27-06-2017 witnessed a balancing act by the Supreme Court of India where it maintained the status quo regarding Aadhaar. The court was analysing legality of mandating Aadhaar for services under the Aadhaar Act, 2016. Immediately before the hearing date, govt extended the date of enrollment for Aadhaar to 30-09-2017. So those not having Aadhaar can choose to enroll for the same on or before 30-09-2017. Needless to mention that this is a purely optional exercise. Those not interested in Aadhaar cannot be forced by Aadhaar Act, 2016 or any other law or notification to enroll for the same.

However, the significance of this extension is that those not having Aadhaar cannot say that the 30-06-2017 deadline mentioned by Indian govt is violating their rights. Now govt cannot deny any benefits under the Aadhaar Act, 2016 to such people till 30-09-2017. Any further agitation can be made only after 30-09-2017 that too when benefits of any services are denied to people not holding an Aadhaar after that date. It is very important that those not having Aadhaar presently do not enroll for the same at all otherwise the constitutional protection they possess may be weakened. So if a child does not possess Aadhaar for mid day meal, it is important that he does not enroll for the same as alternative identification documents can be given to get such meal. Aadhaar is not mandatory for mid day meal at all, even after the Aadhaar Act, 2016.

However, the 30-06-2017 deadline is still violating the fundamental rights of people who have enrolled for Aadhaar. This is because both enrolment of Aadhaar and its uses are absolutely optional as per the interim order of Constitution Bench of Supreme Court. So Supreme Court cannot close its eyes to any deprivation of service by government for not enrolling or non-giving of Aadhaar number for Aadhaar Act purposes. Even a single case of denial of service by government due to Aadhaar is sufficient to challenge the notifications issued by Indian government.

Supreme Court has also given time to the government to file a rejoinder till 04-07-2017 and asked the petitioners to provide any data that shows that people or children have been deprived of services or mid day meals due to Aadhaar.

The government also gave a clear assurance to the Supreme Court that no service would be denied to any person for not possessing Aadhaar till next hearing. So Supreme Court deemed it fit to hear the matter on 07-07-2017 with a certainty that 30-06-2017 deadline has been verbally extended by government till 07-07-2017 for all practical purposes. A notification may also be issued by government in this regard very soon.

However, some very crucial points have emerged out of recent Supreme Court dealings with Aadhaar related cases. Firstly, Supreme Court is clearly hinting that it would unconditionally support those who are fighting against Aadhaar and are not willing to surrender their Fundamental Rights. So if you have not enrolled for Aadhaar so far, do not even think about it. Non enrollment is your best protection against draconian Aadhaar.

Secondly, Supreme Court would not tolerate any sort of deprivation, punitive action or sanction against those not having Aadhaar or are not willing to link the same to various services or purposes. Whether it is Section 139AA case or present petition under Aadhaar Act, 2016, any sort of deprivation or sanction is clearly rejected by Supreme Court.

Thirdly, Supreme Court itself is facing a tough situation. A Division Bench of Supreme Court cannot overrule the order of a Constitution Bench. The Constitution Bench has already made Aadhaar optional for all purposes and allowed use of Aadhaar for selective purposes only. So neither the government nor a Division Bench of Supreme Court can violate that interim order of Constitution Bench. That is why the judgments of Supreme Court on mobile number re-verification and Section 139AA have made use of Aadhaar optional to escape from being Per Incuriam. Please see @_PerIncuriam for more details in this regard. So the Supreme Court is very cautious this time in dealing with the violation of Fundamental Rights of different class of people.

The crux of the proceedings that took place on 27-06-2017 is as follows:

(1) Aadhaar remains optional for all services and purposes and government cannot make it mandatory due to interim order of Constitution Bench.

(2) Government can use Aadhaar for selective/approved purposes only and even for those selective purposes Aadhaar is absolutely optional.

(3) Deadline of giving Aadhaar has been extended to 30-09-2017 for those not having Aadhaar so far. But not enrolling for Aadhaar is the best decision a person can take in present Orwellian times.

(4) Deadline of 30-06-2017 for existing Aadhaar holders has been temporarily extended till 07-07-2017 that is next date of hearing in Supreme Court.

(5) No services would be denied to those who have enrolled for Aadhaar till 07-07-2017.

(6) No services would be denied to those who have not enrolled for Aadhaar till 30-09-2017.

(7) If a person, whether Aadhaar holder or not, is deprived of any service by government or private companies, he/she can challenge the same as Aadhaar is absolutely optional for all purposes. See the constitutional position in this regard.

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