Identity Project

Reminder: Text of Supreme Court order saying Aadhaar is not and cannot be mandatory

Every time the government tries to make the Unique Identity mandatory for another project, it is violating the Supreme Court order.

Finance Minister Arun Jaitley on Tuesday added more than 40 amendments to the Finance Bill, which is technically only supposed to lay out the government’s taxation schemes for the coming year. Among the amendments is an unexplained expansion of the Aadhaar project, making it mandatory for anyone filing tax returns .

Those who file tax returns without quoting their Unique Identity number, as per the proposed amendment, would also see their Permanent Account Numbers invalidated. Once again, the government gave no explanation for why it was making Aadhaar mandatory or going beyond the remit of the last order from the Supreme Court.

This comes on the heels of the government’s order making Aadhaar mandatory for 12 other welfare schemes, including the popular mid-day meal program. There the government had to retreat and say other IDs may be used for now, after an uproar over the idea of government denying meals to schoolchildren who don’t have Aadhaar.

The illegality and impropriety of the government’s latest actions will be debated in Parliament, and should be taken up by the Supreme Court. The broader questions about the Unique Identity project – from the dangers of giving government biometric data to questions about whether it actually improves welfare delivery – also still hold.

Amid all this, it’s worthwhile looking at the last two Supreme Court orders that dealt directly with this issue, and reading their words, which are not ambiguous (emphasis added):

Having considered the matter, we are of the view that the balance of interest would be best served, till the matter is finally decided by a larger Bench if the Union of India or the UIDA proceed in the following manner:-

  1.   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;   
  2.   The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen; 
  3.   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;  
  4.   The information about an individual obtained by the Unique 15 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.  

This is from August 11, 2015, after PILs were filed questioning the government’s right to make the scheme mandatory. The Supreme Court made it clear that it cannot be mandatory, and can only be used for some schemes, and even with those it is to be voluntary. Read the full order from the court here.

A few months later on October 10, 2015, the government asked the Supreme Court to allow the use of Aadhaar in a few more schemes. Again here, the court reminded the government that it cannot be mandatory and is “purely voluntary.” (emphasis added).

3. After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employement Guarantee Scheme 12 (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Providend Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015.

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 Supreme Court took up the matter again in September 2016 – after Parliament had passed a controversial Aadhaar Bill – reminding the government that Aadhaar is not mandatory, and cannot be until the five-judge bench disposes of the issue. Yet the government continues to expand the usage of the Unique Identity, with blatant disregard to the Supreme Court’s orders, and despite the matter continuing to be subjudice.

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