One reason for the controversy surrounding the Aadhaar project is the pending litigation against it in the Supreme Court. The cases draw on substantive critiques, including exclusion and deprivation caused by the usage of Aadhaar in provisioning essential services such as the PDS and MGNREGA, breaches of individual privacy and threats to national and individual security in the way the project has been conceived and implemented. Such concerns are not pure policy matters but interact with constitutionally protected fundamental rights, including Articles 14, 19 and 21 of the Constitution.
The Supreme Court has passed a series of interim orders to prohibit the imposition and limit the application of Aadhaar. However, concerns as to the compliance of such orders has been rising as various government ministries, departments and other statutory bodies continue to link Aadhaar to the provision of services — in many instances, even making it mandatory. In any litigation, the interest of a court is in ensuring that its final judgement is implemented in letter and spirit. Such determinations take time and a common method to ensure compliance is by preventing parties from disturbing the subject matter of the litigation. Acting on these well-established legal principles, the SC has passed a series of orders on the Aadhaar project as it continues to consider the petitions.
In August 2015, the court issued a set of directions making it clear that Aadhaar was not a precondition for the delivery of any state benefits and further limiting its use to PDS schemes. Aadhaar was directed to be optional, and even such voluntary use was allowed only for the distribution of foodgrains and cooking fuels. Such a restraint was passed after the Union government took a stand that the constitutional basis of the right to privacy did not clearly emerge in case law. Acting on this, the court referred the Aadhaar petitions to a larger bench. Such a bench has yet to be constituted with the larger Aadhaar case hanging in the balance.
During the pendency of the case, two significant events occurred. On October 15, 2015, 11 state governments and institutions went back to the SC seeking permission to use Aadhaar beyond PDS schemes. The court agreed to relax its order but limited the use of Aadhaar to four schemes, in addition to PDS and cooking fuel allowed by the earlier order. It again clarified the use of Aadhaar would be, “purely voluntary” even while Aadhaar is used in these schemes. Then, on March 16, 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was passed, having been rushed through Parliament as a money bill. Given that the Aadhaar scheme operated on the basis of a executive notification till such date, some claimed the Aadhaar Act filled in a legislative vacuum. Others criticised it on process and substance. Such concerns have given rise to two petitions challenging the constitutional validity of the Aadhaar Act which the court has agreed to hear, but it will have to wait till the larger question of the right to privacy is decided. Hence, compliance with the interim directions becomes vital.
Irrespective of such challenges, many state institutions have started demanding Aadhaar as a precondition (mandatory, not voluntary) for services (beyond the five permitted schemes). For instance, the joint entrance examination notification for the IIT competitive exam requires compulsory online registration through Aadhaar. A subsequent clarification makes a reference to the Aadhaar Act to purportedly clothe this imposition with an appearance of legality.
This creates doubt on the restraint put by the SC when none should exist. The Aadhaar Act does not have a provision that excludes or nullifies existing orders. On the contrary, there is language in the Act that suggests continuity with the earlier legal arrangement. Even otherwise, a order on September 14, 2016, stayed the imposition of Aadhaar in three scholarship schemes, thereby indicating that the Aadhaar Act does not materially alter the SC’s past orders.
The state’s measures have elements of coercion that undermine individual choice and rights guaranteed under the Constitution. Observance of the interim orders of the Court are better suited to the government for maintaining a healthy, respectful relationship with the judiciary branch. Disregarding them portends a worrying prospect of undermining the authority of the Supreme Court.