Violation of fundamental rights of equality and privacy, introduction and passing of the Aadhaar Act as a money bill and the collection of biometric data by private entities – these are some grounds for the many pending litigations against India’s unique identification, Aadhaar, framework. Contempt may get added to this list soon, senior advocates BloombergQuint spoke with said.

The Government’s Reliance on Aadhaar

Welfare Schemes
From the rural livelihoods mission scheme to housing subsidies, from nutrition programmes to farmer welfare schemes, from education to disability benefits – for more than 25 central government sponsored welfare schemes, beneficiaries are now required to obtain an Aadhaar number.
To be clear, the government’s notifications mention that it will accept an alternate identification till the beneficiary enrols for Aadhaar. But an imputed deadline could make for confused interpretation.

For instance, a notification by the Ministry of Agriculture and Farmer Welfare on Agri-Clinics and Agri-Business Centres (AC&ABC ) scheme reads:

‘An individual…registered under the AC&ABC scheme is hereby required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication.’

It further says:

‘Any individual…entitled to receive benefit under the AC&ABC Scheme who does not possess the Aadhaar Number or has not yet enroled for Aadhaar, but are desirous of availing benefits under AC&ABC Scheme, is hereby required to make an application for Aadhaar enrolment by March 31, 2017…’

But also adds this proviso:

‘… till the Aadhaar is assigned to the beneficiaries of AC&ABC Scheme, benefits under the said scheme shall be given to such individual, subject to the production of the following identification documents…’

The notification is unclear on whether a beneficiary, who doesn’t have an Aadhaar number and who fails to register for it by March 31, 2017, can continue to avail benefits under the AC&ABC scheme. The same confusion infects some of the other notifications as well.

So far no one has complained to court of being disadvantaged due to this confusion or being denied benefits due to the lack of an Aadhaar.

Irrespective of whether Aadhaar is made mandatory or not, or a benefit is denied or not, the notification itself is a violation of the Supreme Court order, Senior Advocate and former Additional Solicitor General Sidharth Luthra told BloombergQuint.

Luthra is referring to the 2015 orders of the Supreme Court in which it held that the Aadhaar scheme is ‘purely voluntary’ and that ‘the production of an Aadhaar card will not be a condition for obtaining any benefits otherwise due to a citizen’.

A case of civil contempt can be made out. If an application is filed, the Supreme Court will take very serious note of it. The government won’t be personally held in contempt; it will be the individual officers who are responsible for ensuring that the court’s orders are complied with. Upon the breach, it’s these officers who will be liable for contempt. It’s not a denial of benefit that would constitute contempt; issuance of notifications by various ministries is trigger enough.

Sidharth Luthra, Senior Advocate

AS Chandiok, senior advocate and a former additional solicitor general, concurred that it is not proper for a democratic government to take the law into its own hands and act despite the Supreme Court’s explicit orders. But the government may choose to argue public interest concerns if the contempt issue is raised before the apex court, he pointed out.

It is very likely that the government will say that we are not able to give benefit to genuine people because of unscrupulous elements. What check can I have? This is the only check and balance I can have between citizens. The government may say that it’s in public interest that I am doing this, so that only people who are entitled to these benefits can avail them.

AS Chandiok, Senior Advocate

But the right way to approach it is to first go to the Supreme Court and seek permission for such notifications, Chandiok added.

Non-Welfare Schemes

While the Supreme Court was clear when ruling against the mandatory use of Aadhaar for welfare schemes, when it comes to non-welfare matters the 2015 order reads in more than one way. At first glance it seems to say nothing about non-welfare matters.

‘The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen.’

On that basis, the government’s decision to make Aadhaar mandatory for tax filing cannot be construed as against the court’s order.

A further reading of the 2015 order reveals that the apex court disallowed the government from using Aadhaar for any purpose other than the six welfare schemes listed in the order.

‘The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than…’

This suggests Aadhaar cannot be made mandatory for any government or non-government service or matter, whether its welfare schemes or tax filing.

But curiously, in a recent order, the Supreme Court itself has directed that an Aadhaar based ‘electronic know-your-customer’ (e-KYC) process be used for issuing new telephone connection.

The Supreme Court’s Silence

The confusion on whether Aadhaar can be made mandatory for non-welfare services aside, lawyers agreed that the 2015 order is clear on welfare schemes. And that even the requirement of enroling for Aadhaar in government notifications pertaining to such schemes amounts to potential contempt of the Supreme Court order.

But why then has the apex court not taken action against the government or officials responsible?

Chandiok explained that the ongoing confrontation between the judiciary and government on the issue of judicial appointments may be one reason.

I don’t think in the current circumstances the Supreme Court will take up the Aadhaar issue by itself. Someone who is eligible for a benefit and is being denied that benefit can approach the apex court – that situation must emerge before the court. I don’t think the court will suo motu take action. The destruction at the hands of the Supreme Court is no less.

AS Chandiok, Senior Advocate

The Supreme Court’s silence amounts to dereliction of duty and the court must ensure rule of law by enforcing compliance of its orders, Chandiok added.

Luthra explained that when this matter first came up in 2015, the court took the view that it should be placed before a five-judge bench. But a five-judge bench is not easy to constitute due to the limited number of judges and the crippling workload.

I am given to understand that Aadhaar cases are likely to be heard in the coming summer vacation, and it would be prudent for the petitioners to raise the contempt issue once the constitution bench is set up.

Sidharth Luthra, Senior Advocate

On Monday though, when litigants currently before the apex court on the Aadhaar matter, sought setting up of a constitutional bench for final hearing on petitions against Aadhaar, the Supreme Court indicated that the matter may need to be heard by a constitutional bench of at least seven judges and that this request is already pending with the Chief Justice of India.