Aadhaar update: Deadline for all mandatory linking to be extended to 31st March, 2018

The case challenging the Aadhaar scheme, Justice K.S. Puttaswamy & Ors. v. Union of India and Ors. (W.P.(C) 494/2012), was heard today for interim relief by the five-judge Constitution bench consisting of Chief Justice Dipak Misra, and Justices D.Y. Chandrachud, Ashok Bhushan, A.M. Khanwilkar, and A.K. Sikri. The Bench heard Senior Advocates Shyam Divan, Gopal Subramaniam, Arvind Datar, K.T.S. Tulsi, Anand Grover, K.V. Vishwanathan, Prashant Bhushan, Meenakshi Arora, Sajan Poovayya, and Santosh Hegde for the petitioners. The Attorney-General was present in Court and replied to certain points as asked by the Bench.

The Union of India has agreed to extend the deadlines for all schemes and services that require the linking of Aadhaar to 31st March, 2018. However, there was a debate if this deadline should be extended for the new bank accounts that may be opened in this three month period. Where the petitioners insisted on a uniform rule of extension for all services, the other side was hesitant to budge on such extension for new bank accounts. Although the Bench listed the final hearing for this case on 17th January, 2017, the order for today’s hearing has been reserved.

The main arguments advanced were:

Senior Advocate Shyam Divan: The earlier orders of the Supreme Court in 2015 that restricted the use of Aadhaar to 6 schemes, made it voluntary, and held that these orders should be followed until the case is decided finally one way or another. Hence, the 139 notifications issued by various departments were in violation of the order dated 15th October, 2015 of the Supreme Court.

Senior Advocate Gopal Subramaniam: The basis of the Supreme Court’s order in October 2015 cannot be removed by statute. He argued that the power of a statute to remove the basis of an order lies in cases that are capable of such removal. If the basis is intertwined with voluntariness and fundamental dignity of an individual, the court is protecting the Fundamental Rights of citizens. That interim order cannot be abrogated by any legislative encroachment; such an abrogation would be an encroachment on judicial power.

Senior Advocate Arvind Datar: Aadhaar is being made mandatory for subjects that are not connected with the Consolidated Fund of India.  The test for using Aadhaar should be that it is connected to a subsidy, benefit or service that has a nexus with the object of the Act, and be of such nature that the receipts are from Consolidated Fund of India.

Senior Advocate K.T.S. Tulsi: Data protection law is not yet in place and without this law, anyone's right to privacy is in danger. 210 govt websites had been breached as a result of which list of beneficiaries was all made public, but no action can be taken because there are no laws in place.

Senior Advocate Anand Grover: Section 29 of the Aadhaar Act proposes to protect data however, there is a lack of data protection framework in the country. It is for this reason that we have the Srikrishna Committee in place. Section 29 will operate once the measures they can take are in place. Biometrics and iris scans, the two attributes that are used in Aadhaar are not fool proof, and are not sufficient to make it unique, because there is inherent duplication. Moreover he argued that data is not within the government, it is contracted out, given to companies that are associated with FBI and CIA.