Petition against Aadhaar Ordinance in Supreme Court on 5 April.

Vishal Chauhan, 04/04/2019
Petition against Aadhaar Ordinance in Supreme Court on 5 April.

The head of the Congress’ big data analytics division revealed in an interview to Asia Times that a writ petition against the government’s Aadhaar ordinance “will come up on 5 April before the Supreme Court.”

The Modi government had pushed through a number of amendments relating to Aadhaar via an ordinance on 28 February, following a failed attempt to pass them as amendments in the final session of Parliament.

The ‘headline’ amendments allow use of Aadhaar for authentication and offline verification in relation to private services including bank accounts and mobile numbers – which the Supreme Court had disallowed in its September 2018 judgment.

Other amendments include the option for children enrolled for Aadhaar to opt out when they are 18 years of age (though the mandatory linking of Aadhaar to PAN for tax returns makes this useless), and a reiteration that services cannot be denied or refused if Aadhaar authentication fails.

‘We Support Justice Chandrachud’s Minority Judgment on Aadhaar’

Chakravarty was speaking to Saikat Datta about the Congress manifesto for the 2019 Lok Sabha elections, which includes proposals relating to Aadhaar. The manifesto promises that the Congress will restrict the use of Aadhaar to “subsidies, benefits and services provided by the government”, which they claim was the original intent behind the Aadhaar programme.

The UPA-II government had introduced Aadhaar-linked benefit transfers in 2012, though this was done without any legislation by Parliament.

According to Chakravarty, Aadhaar as it was originally conceived “was a project to empower weaker sections of society with a portable identity that will remove barriers in migration, access to banks and so on. It was always a voluntary program in letter and spirit.”

While the manifesto says that Aadhaar will be restricted to government subsidies, benefits and services, it also says in a section on ‘Food and Nutrition Security’ that “the linking of Aadhaar will be voluntary but encouraged. No one shall be excluded because of non-linking of Aadhaar.”

This had led to some confusion as to whether the Congress was saying Aadhaar would be voluntary for availing public benefits, or whether they were favouring voluntary linking for private services like bank accounts and mobile numbers as well. This latter reading had formed the basis for the government’s Aadhaar ordinance.

The Supreme Court’s majority judgment had read down the Aadhaar Act 2016 so that it could not be used for authentication in relation to private services, and Justice Chandrachud’s minority judgment expressly held that providing Aadhaar data to private players for authentication was unconstitutional.

Chakravarty clarified that the Congress supported Justice Chandrachud’s view, which should mean that they will not be allowing even voluntary use of Aadhaar for authentication for private services – this would mean the ordinance will be withdrawn or allowed to lapse, if the Congress forms the government (if it isn’t already struck down by the court).

It was at this point that he mentioned that a writ petition would be coming up in the Supreme Court challenging the ordinance, though it wasn’t clear whether the petition had been filed by the Congress.

What are the Grounds to Challenge the Aadhaar Ordinance?

The Aadhaar Ordinance 2019 can be challenged on both form and substance.

Misuse of Ordinance Route

The amendments were originally brought in as a bill in Parliament – though it was passed by the Lok Sabha, it failed to pass the Rajya Sabha before the dissolution of Parliament, and so the bill lapsed. This was why it was brought in as an ordinance by the Modi government.

However, ordinances are only supposed to be promulgated when the conditions specified in Article 123 of the Constitution are met: chief among which is that there is some necessity to take immediate action.

There is no reason why immediate action was needed to allow authentication of Aadhaar for private services – and if there was some urgency, why wasn’t the ordinance brought in immediately after the Supreme Court judgment?

The only drawback of using this as a ground to attack the ordinance is that the petitioners would need to show that the ordinance was an abuse of power by the central government.

While there are grounds to make this argument, including the bypassing of the Rajya Sabha, an attempt to subvert the Supreme Court and the interests of private companies in making this happen, the courts are wary of taking such a stance against the government.

Violation of Supreme Court Judgment

Which means the main focus of the writ petition against the ordinance is likely to be its contents, which run directly contrary to the Supreme Court’s judgment last September.

Allowing use of Aadhaar authentication for private players would be a violation of privacy, and in the ordinance it is not truly voluntary. It also affects the Aadhaar Act’s status as a Money Bill – which would lead to trouble under the majority judgment as well as Justice Chandrachud’s minority judgment.

Then there are the mendments made to Section 33 of the Aadhaar Act to once again allow for disclosure of Aadhaar information in certain circumstances.

The Supreme Court expressly said that disclosure in the interest of national security could only be mandated if a judicial officer assessed the case, and that without this the provision had to be struck down. The ordinance fails to add this requirement when re-inserting Section 33.

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