Prime Minister Narendra Modi was in Patna on October 14 to address the students at Patna University. Responding to this occasion, Registrar of Patna University (P.U.) issued an “Urgent Notice” by the order of Vice Chancellor on the subject ““Instructions for Identity Card of students”. This order dated 10 October, 2017 reads students “who wish to attend Patna University Centenary Celebration to be addressed by Hon’ble Prime Minister are directed to go on the P.U. website www.patnauniversity.ac.in & download their format of Identity Card by entering their Aadhaar Card number on the dates assigned.” It further reads: “They are directed to come to the Wheeler Senate House alongwith the Aadhaar Card, Identity Card of Department/College….” This order is in violation of the Hon’ble Supreme Court’s orders in Writ Petition (Civil) No.494 of 2012 and the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
As per the order of Supreme Court’s 5-Judge Constitution Bench dated 15 October 2015, Aadhaar cannot be made mandatory for any purpose. This has been reiterated by the Court in subsequent orders of 14 September 2016 and on 9th June and 27th June, 2017.
UID/Aadhaar cannot be made compulsory because of orders of the Supreme Court. Aadhaar Act 2016 does not make UID/Aadhaar compulsory. CIDR of UID/Aadhaar numbers is not a verified or audited database, neither the UIDAI nor any other government authority certify it as a proof of identity, address, resident status or even the existence of any person. It is germane to note that this August 11, 2015 order of a three-judge bench of Justices Chelameswar, S.A. Bobde and Nagappan observed, “The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card; The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen”.
The order dated October 15, 2015, passed by the Chief Justice of India-headed five-judge Constitution Bench of Supreme Court in the ‘UID/Aadhaar’ matter, reads: “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013. 5. We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this court one way or the other”.
This ‘voluntary Aadhaar’ position has been repeated by the High Courts of Kerala, Jammu and Kashmir, Karnataka and Andhra Pradesh.
In a significant case, a Punjab and Haryana High Court bench headed by then Chief Justice A.K. Sikri (currently a judge of the Supreme Court) heard a matter challenging a circular making Aadhaar mandatory. The moment the Court raised questions of laws, the circular making Aadhaar mandatory was withdrawn by the central government.
It must be noted that in keeping with Court’s order West Bengal Assembly passed a unanimous resolution against Aadhaar number-related schemes in public interest.
In a related case, the Unique Identification Authority of India (UIDAI) Vs Central Bureau of Investigation (CBI), the apex court passed an order dated March 24, 2014, which reads as follows: “More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number.” This order in the UIDAI vs CBI case is part of the “all the earlier orders passed by this Court” which is required to be followed “strictly”. It is quite evident that repeated orders issued by Hon’ble Court till June 27, 2017 make it clear that UID/ Aadhaar remains voluntary. Therefore, no one can be mandatorily asked to produce or link biometric Aadhaar for anything.
The UID/Aadhaar enrolment process continues to promise Indian residents that “Aadhaar enrolment is free and voluntary.” It must be noted that the existing legal provisions as per the Supreme Court’s order and the Aadhaar Act 2016 do not provide for seeding of Aadhaar with any scheme or project.
The “Urgent Notice” of the Patna University in the matter of Central Identities Data Repository (CIDR) of 12-digit biometric data based Unique Identification (UID)/Aadhaar Numbers of residents of India who have lived in India for at least 182 days after September 12, 2016 when Aadhaar Act, 2016 came into force and those residents who lived even for a single day as a resident of India prior to September 12 is without any legal basis.
Notably, Aadhaar Act implies that CIDR of residents of India is a universal set and “Indians”, citizens of India who come under it are its subset.
As per the Gazette notification from Ministry of Electronics and Information technology “In exercise of the powers conferred by sub-section (3) of Section 1 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016), the Central Government” appointed “the 12th day of September 2016, as the date on which the provisions of Sections 1 to 10 and 24 to 47 of the said Act shall come into force.”This Act of Parliament had received the assent of the President on the 25th March, 2016. As a consequence definition of resident provided in Section 2 (v) of the Act too came into force. As per this sub-section, “resident” means an individual who has resided in India for a period or periods amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of application for enrolment.”
It is noteworthy that after its circular making UID/Aadhaar number mandatory was challenged, University Grants Commission (UGC), Union Ministry of Human Resource Development had “clarified that any student who have applied or wishing to apply for scholarship/fellowship shall not be denied benefit thereof due to non availability of Aadhaar No./Card.” The revised Public Notice was issued on September 14, 2016. The earlier circular of UGC was in manifest violation of Court’s order.
It is an established constitutional norm that the last order of the Supreme Court is the law of the land. Patna University and UGC have failed to take note of the verdict of the Supreme Court dated 9th June 2017. This verdict states that “it is clear that there is no provision in Aadhaar Act which makes enrolment compulsory. May be for the purpose of obtaining benefits, proof of Aadhaar card is necessary as per Section 7 of the Act. Proviso to Section 7 stipulates that if an Aadhaar number is not assigned to enable an individual, he shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service” and categorically states “Thus, enrolment under Aadhaar is voluntary” at paragraph 90-91 (page no. 105-106) of the 157 page long verdict.
In the light of this verdict there is a logical and legal compulsion for all governmental and non-governmental institutions to ensure that all further activities relating to collection/feeding/seeding of Aadhaar Number being undertaken currently should be suspended with immediate effect. In other words, henceforth no more mandatory collection of Aadhaar Numbers for feeding/seeding of collected Aadhaar data is permissible. In order to comply with Court’s order in letter and spirit all the central, state, public and private agencies who are implementing UID/Aadhaar related schemes and systems are under a legal obligation to issue orders in this regard.
Following this verdict no person can be deprived of any service for want of UID/Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the verdict. Given the fact that the child’s welfare was the supreme consideration, relevant communications must be modified with utmost priority.
It must be noted that whenever circulars and letters of central and state government agencies have been challenged and contested they have consistently withdrawn their circulars and letters. Following Supreme Court’s verdict, on August 4, 2017, Justice A. K. Jayasankaran Nambiar bench of Kerala High Court issued an order allowing transaction of business by the petitioner without UID/Aadhaar. In a related development, Union Ministry of Defence issued an Extraordinary Gazette Notification No.S.O-747(E) dated March 3, 2017, published in the Gazette of India dated March 6, 2017, concerning military pensions, in which it stated that, “An individual eligible to receive the pension benefits is hereby required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication”. Major General (Retd) S.G.Vombatkere challenged it, Justice A.S. Bopanna Bench of Karnataka High Court passed an order on April 27, 2017, directing the Government “not to insist upon Aadhaar card or proof of application for issue of Aadhaar card for the purpose of disbursing military pension to the Petitioner if he is otherwise entitled to receive such pension”.
Besides these High Courts even High Courts of Jammu & Kashmir and Andhra Pradesh have passed orders in pursuance of Supreme Court’s orders, it might be useful if all the concerned High Courts take suo motto notice of non-compliance of the verdict by UGC, Patna University and other central and state and non-state agencies to set matters right in order to protect the fundamental rights of students and citizens. Even children in schools are being coerced to get their UID/Aadhaar seeded. In such a situation, as the custodian of children High Courts have an obligation to come to their rescue at the earliest.
The 21st March 2017 circular from Secretary, UGC reiterated the demand saying “Once again, I request you to introduce identification mechanisms like photograph and Unique lD/Aadhaar number in students’ certificates.” It added, “This has been approved by the Commission in its 521st meeting held on 22nd February, 2017.” The decision of the 521st meeting is available at http://www.ugc.ac.in/pdfnews/7782001_521-Minutes-without-establishment.pdf. It makes no mention of ID/Aadhaar. Nowhere has it been mentioned that the revised Public Notice issued on September 14, 2016 has been withdrawn. Thus, the validity and legality of the 21stMarch, 2017 and the “Urnget Notice” of Patna University is questionable in the light of the 9th June verdict of the Supreme Court.
UGC and Patna University’s “Urgent Notice” need to be revised in compliance with Court's verdict. In countries where rule of law prevail the last order of the Supreme Court is the law of the land. No circular can prevail over Court's verdict.
Nowhere does the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 provide for and authorise “seeding”' of UID/Aadhaar numbers in databases. The Act provides for only two uses:
Section 8(2) (b) of the Act is categorical that an agency requesting authentication "ensure(s) that the identity information of an individual is only used for submission” to the Central Identities Data Repository (CIDR) of 12-digit biometric Unique Identification (UID)/Aadhaar Numbers “for authentication". It does not authorise anyone to hold on to the number. Therefore, seeding the UID/Aadhaar number by UGC and Patna University is itself beyond the law.
It germane to recall the doctrine of prohibition of “unconstitutional condition” which means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. Notably, it is unreasonable in a special sense that Aadhaar takes away or abridges the exercise of a right protected by the Constitution. The Court has held that State does not have the right to impose conditions which require the relinquishment of constitutional rights. If the state succeeds in compelling the surrender of one constitutional right as a condition of its favour, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution be manipulated out of existence. Depriving citizens and students the right to listen to their elected Prime Minister at Patna University constitutes violation of their constitutional rights. How can an elected Prime Minister makes himself inaccessible to the citizens who elected him?
In the light of this verdict, it is quite evident that the implementation of UID/Aadhaar is an exercise which is forbidden by our Constitution. If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. State does not have the constitutional power to discontinue benefits due to citizens. State’s power to withhold recognition or affiliation altogether does not carry with it unlimited power to impose conditions which have the effect of restraining the exercise of fundamental rights. Infringement of a fundamental right is nonetheless infringement because it is accomplished through the conditioning of a privilege. If a Legislature attaches to a public benefit or privilege restraining the exercise of a fundamental right, the restraint can draw no constitutional strength whatsoever from its being attached to benefit or privilege. This is applicable to the Aadhaar Act, 2016.
Notably, Re Kerala Education Bill (1958) was the first case in India to lay down the doctrine of the prohibition of “unconstitutional conditions“. The doctrine of unconstitutional conditions prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights. This is despite the fact that there is no antecedent right to that benefit in the first place. It emerges that no Central or State Government can coerce citizens to access subsidies by sacrificing their private data by enrolling for UID/Aadhaar given the fact that they have a right to subsidy. No Government has the constitutional power to make right to have rights condition precedent.
Such coercion by Patna University and other state authorities under Article 12 of the Constitution is without any legal basis. If the Court’s orders and the “urgent notice of the Patna University is read together it becomes quite clear that the latter is in violation of the Aadhaar Act, 2016, Supreme Court’s orders. This notice also demonstrates that PU is superior to Court with regard to the overriding effect of their orders.
Gopal Krishna is a public policy and law researcher, Convener, Citizens Forum for Civil Liberties (CFCL) and editor of www.toxicswatch.org
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]