The constitutional validity of the nationwide aadhar card scheme being
implemented by the Unique Identification Authority of India (UIDAI) at the
instance of the Central Government headed by congress party is being
scrutinised by the Supreme Court of India.
A PIL being WP (C) No.494/2012 titled as “Justice
K.S.Puttaswamy (Retd) vs Union of India” was filed by retired Karnataka High
Court Judge K.Puttaswamy in this regard. By way of an interim order passed on 23rd September
2013, the Supreme Court ruled that aadhar card can only be issued to those
with proven Indian nationality and cannot be mandatory for accessing public
services and subsidies. The Supreme Court held “In the meanwhile, no
person should suffer for not getting the Adhaar card inspite of the fact that
some authority had issued a circular making it mandatory and when any person
applies to get the Adhaar Card voluntarily, it may be checked whether that
person is entitled for it under the law and it should not be given to any
illegal immigrant”.
On 26th November 2013, the Supreme Court sought
responses of all states in two weeks on the constitutional validity of the
aadhar card scheme being implemented by the UIDAI. It is pertinent
to note that UIDAI was not created by a statute but by a decision of an
empowered group of ministers as part of the Planning Commission without any
delegation of power to collect sensitive personal data in the shape of
biometric details of citizens. The contention of PIL petitioner is that it
is a serious legal and constitutional issue. The UIDAI does not have statutory
existence. It enters into memorandum of understanding with the states, which do
not have the sanctity of even a contract. The state in turn appoints
registrars, who could either be a government official or a private person. The
registrars engage private companies/organizations to collect sensitive
biometric data without there being any statutory mechanism to protect this data
from being commercially exploited by individuals. The Government says that
the aadhar scheme is voluntary but the fact is that state governments make
Aadhaar cards mandatory for registration of marriages, getting ration cards,
registration of sale deeds, getting subsidized LPG cylinders, admission of
students to schools and colleges, getting employees provident fund benefits and
even grant of scholarships to students by the University Grants
Commission.
Sometime back, a Goa court directed UIDAI to give the CBI
biometrics of all residents enrolled with Aadhaar in the state to help solve
the gangrape of a seven-year-old girl. The court noted that the database, which
includes recording of fingerprints, iris and facial images of applicants, was
supposed to be devoid of duplication and tamper-proof. There were some chance
fingerprints recovered from the scene of crime and the magistrate thought UIDAI
could match these fingerprints with its database to help ascertain the
identities of the assailants. Aggrieved by this order, the UIDAI moved Bombay
High Court and argued that the validation of the magistrate’s order will open
the floodgates of such directives by other courts as well other authorities. It
added the UIDAI system was developed “for civilian use and for non-forensic
purposes”. But the High Court recorded that the UIDAI had agreed to test the
competence of its database in comparing the chance fingerprints found at the
scene of crime with its biometric record and also asked the director general of
the Central Forensic Science Laboratory to examine the technological
capabilities of the UIDAI database. Terming the High court’s order as wrong and
erroneous, the UIDAI, appealed to the Supreme Court by way of SLP (Crl)
No(s).2524/2014.
The Supreme Court by way of its interim order passed on 24th March
2014 in the said appeal stayed Bombay High Court’s order. The Supreme
Court also restrained UIDAI from transferring any biometric information of any
person who has been allotted the Aadhaar number to any
other agency without his consent in writing. The Supreme Court
further ruled that no person shall be deprived of any service
for want of Aadhaar number in case he/she is otherwise
eligible/entitled. The Supreme Court also directed all the authorities to
modify their forms/circulars/likes so as to not compulsorily require the
Aadhaar number.
All the petitions challenging validity of aadhar card are
tagged and are listed in Supreme Court of India on 28th April 2014.
Sunil Goel advocate
B.Sc. L.Lb L.Lm
