SC Bench starts hearing Centre's petition on Aadhaar

A five-judge constitution Bench of the Supreme Court, headed by Chief Justice H L Dattu, on Wednesday started hearing the Centre's petition to modify its earlier order on Aadhaar and the main question which fell from the judges was whether the identity card was voluntary or mandatory.

Attorney General Mukul Rohtagi said the scheme was free, voluntary and encrypted and the details in the card could not be accessed by private parties. It has been voluntarily accepted by 920 million people in the country and its main thrust was financial inclusion of the poor strata of society. Cellphone snoops on those who have sim cards much more than this card.

Aadhaar can be used for social benefit schemes other than PDS and cooking fuel. According to earlier orders of the court, the card should be mandatory only for these two benefits and no one shall be at a disadvantageous position because one had no Aadhaar card. Counsel said that the main problem is that those who wanted to avail of other beneficial schemes are deprived of them because of the earlier orders.

Sebi, RBI, the Pension Authority and other government institutions adopted the arguments of the Attorney General. SEBi, for instance stated that stock exchanges could be used to create black money and therefore the transactions through the exchanges could be traced through the cards. The pension authority stated that distribution of this benefit would be easier with the card and would cut out fakes.

The Attorney General said that a three-judge bench last week referred the issues to a larger bench. But that bench itself could have modified the earlier order and allowed the use by those who wanted to use the card for benefits other than PDS. Instead, it referred the issues to the constitution bench.

Along with the issue of modification of the earlier orders, the more significant question is whether a five-judge bench can decide the case when an eight-judge bench had ruled decades ago that there is no right to privacy under the Constitution. The Chief Justice said that he has not decided whether the matter should be referred to a bench of nine or 11. This will be decided after hearing the petitioners who have challenged the UIAID scheme altogether. They will argue their side on Thursday.

According to a number of petitions before the court, this kind of invasion of privacy has not happened anywhere in the democratic world, except during the period when certain communities were enumerated by dictatorships. Counsel Shyam Divan, who opened the argument for them, pointed out that the collection of personal details is done by private agencies without any authority, not even an executive circular. There is no mention of biometric use in any of the documents. But the collection of details and demand of their production through the cards is insisted upon even by private institutions like schools and hospitals.