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SC allows voluntary use of Aadhaar for four schemes -Dhananjay Mahapatra & Amit Anand Choudhary
-The Times of India

NEW DELHI: The Supreme Court on Thursday permitted citizens to voluntarily use Aadhaar cards to avail benefits under the Mahatma Gandhi National Rural Employment Guarantee Scheme, along with Pradhan Mantri Jan Dhan Yojana and schemes related to pension and PF after the government promised that absence of Aadhaar would not debar people from benefiting from the schemes concerned.

The relief came from a bench of Chief Justice HL Dattu and Justices MY Eqbal, C Nagappan, Arun Mishra and Amitava Roy, which clarified the August 11 interim order of a three-judge bench and allowed linking of Aadhaar on a voluntary basis to these four schemes. The interim order had restricted voluntary use of Aadhaar card to LPG subsidy and getting ration under PDS.

The concession came after attorney general Mukul Rohatgi furnished an undertaking to the court that no citizen would be denied benefits under social welfare schemes for want of Aadhaar card. The court for its part laid down two pre-conditions - government would not force citizens to enroll for Aadhaar card, and they would not make it the eligibility criterion for benefits under various schemes.

The court-mandated qualifiers notwithstanding, the government seemed pleased with the order because it is confident that transparency and ease that Aadhaar platform can potentially provide will be an incentive for people to use it for availing benefits of various schemes.

Petitioners' counsel - senior advocates Shyam Divan, Soli J Sorabjee and Gopal Subramaniam - reluctantly agreed to allow voluntary use of Aadhaar to these four schemes after the five-judge bench remained struck to its point - if the card could be voluntarily used for availing LPG subsidy and ration, why should it be not true for other schemes.

The Centre had landed in a tight spot by strenuously arguing that right to privacy was not a fundamental right when petitioners had challenged the biometric data - fingerprints and iris image - in the Aadhaar card as gross violation of privacy as storage of citizens' personal data was not fully secured.

The petitioners had also argued that there was no statutory or administrative mandate behind Unique Identification Authority of India (UIDAI) to collect biometric data of citizens for creating Aadhaar card.

To counter the petitioners, the Centre had cited two SC judgments, one by an eight-judge bench and another by a six-judge bench, holding that citizens did not have a fundamental right to privacy. Finding confusion in the judicial rulings, a three-judge bench had on August 11 referred the petitions to a larger bench for determining whether right to privacy was a fundamental right and whether Aadhaar cards violated it.

But the interim order came in the way of the government extending benefits to the target group without linking it to Aadhaar, especially when 92 crore people possessed it. Even if the court permitted voluntary use of the card, the government knew it would be able to persuade people to use Aadhaar for easily accessing benefits under social welfare schemes.

This made the Centre rush to the three-judge bench with an application seeking clarification of the August 11 order to allow voluntary use of Aadhaar card to get benefit under all social welfare schemes.

Rohatgi successfully pitted 92 crore Aadhaar card holders against 20-odd petitioners. "Why should the 92 crore card holders who are ready to use their cards voluntarily to avail benefits under social welfare schemes be restrained by the Supreme Court from exercising the option merely because 20-odd petitioners are opposing it," he asked.

Divan and Subramaniam argued that it was more a question of propriety. "There is no statutory or administrative order backing the UIDAI to collect biometrics of citizens. No Constitution or court could allow a government to play with the personal details of citizens to enable it to track their every movement," they said.

Subramaniam predicted gross violation of citizens' privacy in his characteristic lyrical and dramatic arguments, earning appreciation from the CJI, who said, "We appreciate the dramatic portrayal of the arguments. It is so impressive." But the bench was firm that if Aadhaar could be used for LPG subsidy and ration purposes, it could also be used for important social welfare schemes.

However, it refused to make Aadhaar the basis for all welfare schemes even on voluntary basis saying the petitions were yet to be decided by the larger bench, which could be of either nine judges or 11 judges. But the CJI indicated that the larger bench would soon be constituted given the importance of the matter.