In its order last week, the five-judge Constitution bench led by Chief Justice HL Dattu reiterated the court's previous statement that the government could not force citizens to enrol for Aadhaar until the court decides the case against the scheme. Petitioners have maintained that there are no safeguards in place to secure the data collected for the programme, which could result in a gross violation of individual privacy.
Last week's hearing builds on the precedent set by a three-judge bench in an order passed on August 11 in which the court had permitted voluntary use of Aadhaar in the Public Distribution System that provides subsidised food, kerosene, and liquefied petroleum gas to beneficiaries. It adds four more schemes with the same caveat – that the use of Aadhaar be voluntary, not coercive. These are the Mahatma Gandhi National Rural Employment Gurantee Act, pensions for the poor under the National Social Assistance Programme, the Prime Minister's Jan Dhan Yojana which seeks to provide every household a bank account, and provident fund via the Employees' Provident Fund Organisation.
The legal validity of the biometrics identity project was first challenged in the Supreme Court by KS Puttaswamy, a retired judge of the Karnataka High Court in 2012, who noted that India lacks laws on privacy and on data protection. The National Identification Authority of India Bill to govern the Aadhaar programme was rejected by a parliamentary committee in 2011, which asked for the law be sent back the drawing board. But this has not yet been done. Despite this, the Unique Identity or Aadhaar project has continued to enrol residents without any law governing the process of enrolment or data protection. Given this, the Supreme Court has passed three orders in September 2013, March 2014, and on March 16 stating the government cannot make it compulsory to enrol in Aadhaar.
Even in the face of these Supreme Court statements, critics of the programme point out, the government repeatedly violated the orders in an attempt to push for higher enrolment. It demanded Aadhaar for a range of interactions – to vote, to buy or sell property, register a marriage, or to adopt a child. Critics are concerned that this will continue even after the most recent order.
The schemes added in the most recent order benefit enormous numbers of people. For instance, 27.4 crore rural poor currently work in MNREGA, while 2.7 crore elderly, widows and disabled poor get central assistance under the National Social Assistance Programme on social pensions. Though the court insisted the signing up for Aadhaar is voluntary, critics fear that people who fail to enrol in the biometrics identity database will be excluded from the wefare programmes.
Government representatives, on the other hand, aren't satisfied either. On July 22, the government asked the Supreme Court to let it use Aadhaar in all public subsidies and welfare schemes. It had proposed to link Aadhaar to other government services including providing passports, PAN cards, railway bookings, to telecommunications (mobile, internet, data), and prison management systems. But the court order left out the majority of the 80 or so schemes and subsidies that the central government and 11 regulatory authorities wanted to include under the purview of Aadhaar.
Senior govermment officials said they will seek fresh redress from the court.
“If you are a public scheme beneficiary, I have the right to ask for your digital identity,” contended a senior official in the ministry of finance. He viewed the court's permitting voluntary use in the ration schemes in the previous August 11 order as well as the four new schemes in October 15 order as an arbitrary choice from among the full list of welfare schemes. “We will ask for the entire list we had submitted to be included,” said the official.
However, this may take a while. In the October 15 order, Justice Dattu noted: “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.”
Since Attorney General Mukul Rohatgi had argued in the court in July that there is no fundamental right to privacy under the Constitution, any modification to the order can only now be made by a Constitution bench with five or more judges that will rule both over whether a fundamental right to privacy exists, and whether the government is permitted to link more schemes to Aadhaar. It could take from a few months to years as already several matters are pending for hearing by specially constituted Constitution benches, said the finance ministry official.
This also worries Aadhaar's critics. So far, the only recourse a citizen had against the government violating the Supreme Court’s orders against compulsion in Aadhaar was to approach the three judge bench of the Supreme Court with a contempt petition. Now with the matter before a Constitution bench which may be set up over a period that could be months or years, this door too is closed for now.