Aadhaar linking: CJI frowns upon hyperbole 

Aadhaar linking: CJI frowns upon hyperbole 

Context

Heading a five-judge Constitution Bench, Chief Justice of India Dipak Misra refused to be moved by the “hyperbole and rhetorics” against Aadhaar linking.

SC Observed

Supreme Court had passed interim orders making Aadhaar voluntary before the Aadhaar Act came into existence in 2016.

139 Circulars

The Chief Justice’s remarks came on the first day of the Aadhaar hearing after senior advocate Shyam Divan and advocate Vipin Nair for petitioners, argued that despite repeated orders passed by the Supreme Court since 2014, the various agencies and government ministries have gone ahead to issue a whopping 139 circulars making Aadhaar mandatory for nursery admissions to welfare subsidies to student scholarships to CBSE and NEET exams — even for getting a death certificate or treatment for HIV.

Consistent stand

• The Supreme Court had never flinched from its stand, taken consistently in its past interim orders, that Aadhaar should be “purely voluntary” till it took a decision on the constitutional validity of the Aadhaar scheme one way or the other
• These circulars were issued regardless of the fact that challenge against Aadhaar was still alive in the Supreme Court.
• The series of government circulars making Aadhaar mandatory is in the teeth of the Supreme Court orders to continue Aadhaar as a voluntary exercise only for availing subsidies and “dimnishes the stature” of the highest court.

Government’s stance

Should it have come to the court everytime before notifying under Section 7 of the Aadhaar Act?

Rights abrogated

Orders passed by the Supreme Court, including one by a Constitution Bench of the court in 2015, emphasising on the voluntary nature of Aadhaar was under Articles 32 and 142, using the court’s fundamental and extraordinary powers in the Constitution.

Protecting the citizen

The Supreme Court exercised judicial powers to insulate the citizen from parting with their fundamental right to privacy, dignity and voluntariness through state compulsion, force or coercion 

Fundamental rights abrogated

Fundamental rights of the citizen cannot be abrogated by the Aadhaar Act or any kind of legislation. It is against the rule of law and sanctity of judicial orders 

Overriding the court judgement?

How could the 139 circulars making Aadhaar linking mandatory override a judgment of a nine-judge Bench of the Supreme Court upholding privacy as a fundamental right?

Beyond mere subsidies

Senior advocate argued that the circulars issued under Section 7 of the Aadhaar Act have gone beyond mere subsidies. “In Chennai, Plus Two students require Aadhaar to attend their exams… you need Aadhaar to get a death certificate,” he submitted.

Article 144

Article 144 of the Constitution mandates the government to act in furtherance of Supreme Court orders, not against it

Data breaches

210 central websites have been breached, exposing the personal data of consumers who had linked Aadhaar.

No data protection law yet

Privacy is in peril if data is parted to telecoms. There is no data protection law in place till date

No remedy against data breach

• Personal data given is not secured inherently
• Data is not stored by the government, but outsourced to companies… American companies, who also supply to Pakistan
• The individual has no remedy against data breach.