Aadhaar hearings before Constitution Bench

Amritananda Chakravorty Mihir Samson

The much anticipated hearing challenging the validity of the Aadhaar programme as well as the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘Aadhaar Act’) began last week in the Supreme Court before the Constitution Bench of Chief Justice Dipak Mishra, Justice A.M. Khanwilkar, Justice A.K. Sikri, Justice D.Y. Chandrachud and Justice Ashok Bhushan. None of the four-senior judges who expressed their displeasure last week in public about the administration of justice in the highest court were part of the Bench.
There are more than 30 petitions that have challenged the validity of Aadhaar, including Justice K.S. Puttaswamy, retired judge of Karnataka High Court, S.G. Vombatkere, Aruna Roy, Shantha Sinha, Kalyani Menon Sen, Binoy Viswam, and Mathew Thomas, amongst others. Even State of West Bengal has challenged the Aadhaar Act.
Appearing for some of the Petitioners, Mr. Shyam Divan, Senior Advocate, who has been leading the charge against Aadhaar in last five years, argued that “if the Aadhaar Act and programme is allowed to operate unimpeded, it will hollow out the Constitution, particularly the great rights and liberties it assures to citizens.” 
Mr. Divan further argued that “the government has rolled out a little understood programme that seeks to tether every resident of India to an electronic leash. This leash is connected to a central data base that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the State to stifle dissent and influence political decision making. As the Aadhaar platform extends to private corporations, the degree of tracking and extent of profiling will exponentially increase. Several State governments have started using the Aadhaar platform to build profiles of residents that is reminiscent of totalitarian regimes.”
He further contended that for most of the time, the Aadhar program operated without a prescribed law in place, i.e., from 2009 to July, 2016, when the Aadhaar Act came into force, the Aadhaar program had no legal basis or justification, except being set up under a Central Government notification. This was argued to be completely unlawful, since fundamental rights cannot be restricted, let alone taken away, by an executive notification. Even Aadhaar Act, which covers some aspects of the Aadhaar program and not the whole, is under challenge on many grounds, including that it could not have been passed by the Government as a ‘money bill’ in Lok Sabha.
The judges asked many questions pertaining to the programme, biometrics, and the data security, amongst others. The hearings will continue.      
Major decisions –
i. Adult women and men have the freedom to choose their spouses – The Supreme Court, while hearing a petition filed by Shakti Vahini, a NGO, which sought directions from the Court against the Central Government and the State Goverments on the prevention of ‘honour crimes’, noted that “the Khap Panchayat as a collective body cannot summon adult girls or boys on their choice of marriage. Whenever there is a collective attack on girls and boys who have attained majority, it is absolutely illegal”. The Court was deliberating on the report filed by Raju Ramachandran, appointed amicus in the case, who stated that the Central Government was consulting the States whether to enact a legislation on the issue or not. The Government was asked to respond to the report in two weeks. [Shakti Vahini vs. Union of India, Writ Petition (Civil) No. 213 of 2010, date of order: 16.01.2018]

ii. Loya case adjourned and now to be heard by a bench headed by CJI Mishra: the sensational case of CBI Judge Loya’s death took another critical turn when the matter came up before the much controversial bench of Justice Arun Mishra and Justice M Shantanagoudar on a writ petition filed by Tehseen Poonawalla and another journalist. Despite protests from several quarters, including the four senior most judges last week, about alloting this sensitive matter to Justice Mishra, the Bench heard the matter and asked the State of Maharashtra to file all relevant documents in the case and give a copy to the Petitioners. The Court then posted the matter to be listed before another bench. The matter is now listed for Monday before the Bench of Chief Justice Dipak Mishra. [Tehseen Poonawalla vs. Union of India, Writ Petition (Civil) No. 19 of 2018, date of order: 16.01.2018]  (IPA/To be continued)

Sunday, 28 January, 2018