20/08/2015 8:15 AM IST | Updated 15/07/2016 8:25 AM IST

Why The Supreme Court Should Not Apply Brakes On Aadhaar

SAJJAD HUSSAIN via Getty Images
A view of the Indian Supreme Court in New Delhi on July 28, 2015. India's Supreme court refered Yakub Memon's petition against his death sentence for his role in the 1993 Mumbai bomb blasts to a larger bench after a two judge bench delivered a split verdict. AFP PHOTO / SAJJAD HUSSAIN (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)

The Supreme Court of India has dealt a severe blow to the Government of India's efforts to transfer welfare payments under the Direct Benefits Transfer (DBT) scheme to Aadhaar-linked bank accounts. This, it was hoped, would facilitate timely payments and also for preventing misuse of funds, especially by middlemen. In fact, DBT became a game changer in India, as lakhs of people, especially living in rural India, who never had a bank account, have benefited from Aadhaar linked bank accounts.

In a case between (Retd) K.S.Puttaswamy and others vs. Union of India and others, the court, in its judgment delivered on 11 August, while pointing out to the shortcomings of the Aadhaar scheme, rolled out by the Unique Identification Authority of India (UIDA)I, has held that the collection of biometric data and other personal information for Aadhaar card was violative of Article 21 of the constitution that protects the "right to privacy," and others embodying the fundamental rights guaranteed under Part III of the Indian Constitution.

"No government will be able to function if the court decides to adjudicate all executive decisions."

Previously, the court made an interim order on 23 September, 2013 whereby it ordered that no person should suffer on account of not having an Aadhaar card, asserting that its use should not be made mandatory for availing essential services such as gas connections, vehicle registration, scholarships, marriage registration, salaries, and provident fund disbursal and property registration.

The bench, while passing the order, also required the Union of India or the UIDA to fulfill the following conditions:

  1. The Union of India shall give wide publicity in electronic and print media that it is not mandatory for a citizen to obtain an Aadhaar card.
  2. The production of an Aadhaar card will not be a 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 food grains 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 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.

The Attorney General of India then argued that privacy was not a fundamental right under the Indian Constitution. In response, the Supreme Court has agreed to refer the matter to a constitutional bench.

The judgment defies logic, as one is required to provide personal information while applying for a ration card, pan card and voter card. The larger question that arises is whether the court should adjudicate on matters relating to executive decisions. In the past, we have seen that the court making adverse comments on the creation "Salwa Judum," an irregular force formed with local tribal youth to combat Naxal terrorism by the Chhattisgarh government saying that it was amoral. In the black money case, a judge made caustic comments on the government for not disclosing the names of Swiss bank account holders. The judge had to face embarrassment when it was brought to his notice that the government had passed on the names of Swiss bank account holders to the Supreme Court-appointed Special Investigation Team. In the matter of projects to clean the Ganga, the court had expressed reservations about the ability of the government to execute the project.

"I sincerely hope the larger bench reverses the decision... If this is not done, it will seriously impair the government's efforts in launching future welfare-oriented schemes."

No government will be able to function if the court decides to adjudicate all executive decisions. The court should restrict itself only in matters relating to non-application of mind by the government or, when it thinks that certain mala-fide intentions were involved while making the decisions. Otherwise, it should stay away from adjudicating executive decisions.

If the larger bench decides to not make the use of the card mandatory, this unique scheme may not achieve all that it could. This scheme has facilitated lakhs of people in opening bank accounts, for applying for a passport, filing income tax returns, for marriage and property registration and for other uses, thus replacing multiple cards. It is true that, like any government scheme, this scheme, as pointed out by the Supreme Court, has been misused by illegal immigrants, but it is up to the government to strengthen the mechanism against such abuse.

I sincerely hope the larger bench reverses the decision as the Aadhaar card has proved to be a great success in India, for not only giving a unique identification number to each citizen, but also by doing away with a multiplicity of cards which are presently required for availing various services. If this is not done, it will seriously impair the government's efforts in launching future welfare -oriented schemes.

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