Aadhaar in a double bind

There is a rare chance SC will invalidate Aadhaar, but high possibility its mandatory nature will be curtailed

Mobile companies and banks are routinely sending SMSs for mandatory authentication of Aadhaar, thereby creating confusion as well as fear among the public in general. The Supreme Court (SC) has recognised the right to get speedy justice as a fundamental right, but has failed to give the final verdict on Aadhaar, which, in turn, has caused multiple petitions to be filed over the years. The latest entrant in the Aadhaar case docket is the challenge to Prevention of Money Laundering Act rules and DoT circular which makes Aadhaar mandatory. Nine judges unanimously decided against the government by holding the right to privacy as a sacrosanct fundamental right, yet the Supreme Court is yet to constitute the bench to hear the challenge to Aadhaar. Further, delay on part of the Apex court may become a classic case of the operation being successful but the patient having died.

Adding to the confusion, the RBI, in a reply to an RTI query, has stated that it has not issued any instructions of mandatory linkage of Aadhaar, but the same has been done after an amendment of PMLA rules in June 2017 by the Central Government. Why does the RBI, as the financial regulator, not issue official directions to all banks stating that linkage of Aadhaar is mandatory? Recognised as an autonomous body since pre-independence days, RBI has already suffered a loss of credibility in the public eyes during the days of demonetisation. RBI is yet to explain how, in contravention of section 26 of the RBI Act, 1934, currency once demonetised was allowed to be selectively used in the system.

The Apex court, in its order dated August 11, 2015, has already directed the government to publicise in the media that Aadhaar is not mandatory. On a plea by NGO Lokniti, the Apex court in February 2017 had directed for verification of all mobile phone numbers within a year. However, in the guise of the SC order, which had not mandated any mechanism, Department of Telecom came up with its circular dated March 23, 2017, directing the telcos to verify and re-verify their customers by Aadhaar authentication.

There exists a multitude of documents such as driving licence, voter ID card, passport, PAN to complete Know Your Customer (KYC) formalities. It is rather preposterous that even though Aadhaar is not a legal ID and address proof, it has been made mandatory for KYC purposes. Moreover, why should a person who has already completed KYC formalities using other legal documents be forced to share his Aadhaar number with the bank or telcos? The argument is bolstered for a person who is not claiming any subsidy or relief from the government schemes and wishes to lead his own private life as envisaged under the right to privacy.

Aadhaar started out as a scheme of the erstwhile Planning Commission and embarked on a journey to collect the biometrics of anyone in India, without any statute backing it. It was only years later in 2016 that the scheme was given the backing of a statute and the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 was passed by Parliament. It is questionable as to why Aadhaar has not been made mandatory as per the Aadhaar Act, 2016. Is it that our legislature is too inept to envision the future so that we had to amend the rules in PMLA, 2002 within a year of Aadhaar Act, 2016? Or, did the passage of Aadhaar as a money bill handicap the government from making several changes, which it now passes through the back door.

The government has done little to protect the data of over 100 crore Indians that is stored in the Aadhaar data bank. Where is the guarantee that the government or any private agencies will not misuse the data, which has huge commercial value? There have been news reports that scamsters, by obtaining Aadhaar details, have defrauded people and siphoned off money from their bank accounts. After the Apex court judgment on the right to privacy, should not the UIDAI or other agencies be held liable for violation of security breach as if it were not for Aadhaar, the public would not have suffered any loss?

In all fairness, there is a rare chance the Supreme Court will invalidate Aadhaar, but there exists every possibility that its mandatory nature will be curtailed. The Court, while delivering its order regarding the sale of firecrackers remarked that it knew that the order was going to be violated. Is the Court now waiting for its various interim orders on Aadhaar to be violated by the government itself? In its interim order dated March 24, 2014, the SC had put a ban on data sharing of Aadhaar data as well as its mandatory nature. Supreme Court has the option of initiating contempt proceedings but the public is surely looking to be without legal options. The All India Bank Officers Association has already demanded that the decision on mandatory linkage of Aadhaar be suspended until the Supreme Court gives its verdict. Forcibly making Aadhaar mandatory, which was once said to be optional, will affect the credibility of the government. It will be best for the government to explain its actions, which otherwise seem to be without aadhaar, while all eyes look towards the Supreme Court.

The author is a Supreme Court lawyer and an expert in Constitutional affairs. Views expressed are personal.