Consti bench surprises all, modifies Aadhaar interim order after 4 hours of impassioned pleas by rival counsel

Chief Justice HL Dattu, who led the five-Judge Constitution Bench, had a surprise in store after hearing rival contentions for and against relaxing the 11 August interim order in order to exempt more schemes from its purview.

While things looked as though they were nowhere near a solution, Dattu revealed his surprise solution only at the fag end of the marathon hearing that was held for two hours on 14 October and two hours yesterday, on 15 October.

Modification means making only a few changes, he said, therefore, the bench was willing to consider expanding the list of exemptions by adding just the two most important of the long list which the AG had submitted.

When the AG pleaded for more, the bench then agreed to four, namely, the MNREGA scheme, Pradhan Mantri Jan Dhan Yojna (bank account opening), Provident Fund scheme, and Pension scheme.

The beneficiaries of these four schemes, apart from LPG and PDS, can now produce their Aadhaar number to claim benefits, and the government can accept it if it matches.

But these beneficiaries also have the option of submitting identity proofs other than Aadhaar.

The CJI’s surprise solution to what appeared as a tangle of sorts emerged just 15 minutes before the bench was to rise for the day at 4 pm.

The petitioner’s counsel, Shyam Divan sought the issue of fresh notices on the respondents’ plea, as the interim order was a result of the three judge bench hearing the matter for several days.

Gopal Subramanium, also arguing on behalf of the petitioners, explained to the bench that the 11 August order created two exemptions from its purview when it was submitted that there could be beneficiaries under the PDS and the LPG schemes, who might not have other identity proofs, apart from Aadhaar; therefore, it would be unfair to stop them from availing the benefits. Even for them, it was not mandatory.

Only the respondents have been restrained from going ahead with use of Aadhaar for any purposes other than these two, so that the steps taken by them do not become irreversible, until the Constitution Bench arrives at the result of the reference on whether the right to privacy is a fundamental right.

Subramanium warned the bench that if the Aadhaar card and identity do not match, the person concerned may be considered fake, and the other documents to prove his or her identity might not be of any help.

Justice Dattu, however, said this would not be the case, as other proofs would be accepted.

Divan repeatedly told the bench that the Aadhaar scheme had no mandate whatsoever for biometrics and fingerprinting.

A minimum figleaf of authority was required, he said.

There is a gaping silence, he explained, pointing to absence of instructions as to how fingerprints are to be taken.

The AG, on the other hand, spoke about denying welfare benefits to 92 crore people who have opted for Aadhaar voluntarily, if the 11 August order were not relaxed further.

Subramanium pleaded for adding a sentence in the order to suggest that there shall be ‘no insistence for enrolment of Aadhaar card’.

But both Justice Dattu and the AG felt no need for it, as it is entirely “voluntary”.