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Ten Things For Which Aadhaar Was Made Mandatory Even After an October 2015 Supreme Court Order to the Contrary -Arshu John
-Caravan Magazine

Since the Aadhaar programme, which aims to provide Indian citizens with unique identification numbers, was launched in 2009, several petitions have been filed before the Supreme Court that oppose its application by the government. These petitions have challenged the Aadhaar programme on various grounds: the government’s right to ask the citizens to provide biometric data for Aadhaar verification without adequate safeguards against its potential misuse; the legality of the mass collection of data; and whether having an Aadhaar number can be made mandatory for availing benefits from state welfare schemes. The court has ruled on several petitions that question the linking of Aadhaar to state programmes: it has repeatedly said that the Aadhaar card cannot be made a mandatory requirement to avail government services, benefits and subsidies.

On 23 September 2013, the Supreme Court passed an interim order on a batch of such petitions, led by a writ petition filed by KS Puttaswamy—a retired judge of the Karnataka High Court, who had challenged the government’s decision to issue Aadhaar cards and link them with various government benefits or schemes. The court noted that, “no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory.” Every year since then, the Supreme Court has consistently held that the Aadhaar card cannot be made mandatory until the matter is finally heard and disposed by the court.

In 2014, the Supreme Court stated that, “no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled.” It directed all authorities in the country to modify any forms or circulars in order to ensure that the Aadhaar number was not a mandatory requirement. In August 2015, after the central government argued that the Constitution does not grant a “right to privacy,” and that since this right did not exist, the Aadhaar scheme could not violate it, a three-judge bench of the Supreme Court referred the batch of petitions to a larger bench. On 15 October 2015, the three-judge bench responded to an application requesting clarification on its August order, and stated, “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.” The court also directed the central government to “strictly follow all the earlier orders passed by this Court commencing from 23.09.2013.”

In March 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act was enacted. A section of the act appeared to state that the Aadhaar number could be mandatory—according to section 7 of the act, central and state governments may require citizens to undergo authentication or furnish their Aadhaar number in order to establish their identity to avail a subsidy or a benefit. Nevertheless, on 14 September 2016, while ruling on a petition challenging the University Grants Commission’s decision to make Aadhaar card mandatory for application to government scholarships, the court upheld its October 2015 order, and stayed the operation and implementation of the UGC decision.

The same day the court issued the UGC order, the Unique Identification Authority of India (UIDAI)—the authority responsible for issuing and authenticating Aadhaar numbers—notified five regulations on the issuance and administration of Aadhaar numbers. The next day, the UIDAI issued a circular containing a guideline for central ministries or state governments planning to use Aadhaar numbers for services, benefits and subsidies. The circular said that any notification issued by these bodies shall make it mandatory for “a beneficiary applicant to undergo Aadhaar Authentication or furnish proof of possession of Aadhar number.” It further added that individuals who do not possess an Aadhaar number could provide alternative identity documents “till such time Aadhaar number is assigned.” Effectively, the circular meant that central ministries or state governments could make Aadhaar numbers mandatory at their discretion.

The Supreme Court is yet to rule on the Aadhaar regulations or the circular. The batch of petitions challenging the Aadhaar Act has not been heard since October 2015, when it was referred to a larger bench. While referring the petitions, the court said: “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.” On 5 January 2017, Shyam Divan, a senior advocate, requested a three-judge bench that included JS Khehar, the newly appointed Chief Justice of India, to expedite the hearing of the petitions. The bench declined his request.

Below is a list of ten instances since October 2015 in which state and central governments have made the Aadhaar number a mandatory requirement for a service, benefit or subsidy.

Please click here to read more.