The Hon’ble Supreme Court of India (Court) on 13 March 2018 passed an order (Order) extending the deadline of 31 March 2018 for linking Aadhar to bank accounts, mobile numbers and passports, till the matter is finally decided. In the course of the hearing on 7 March 2018, the Court had remarked that it may not be possible to conclude the final hearing and pronounce the judgment by 31 March 2018. Further, it would have caused significant inconvenience to users and service providers alike, if the deadline was modified at the last minute. Consequently, the deadline has been extended indefinitely, providing a major setback to the Government.

To provide context, on 15 December 2017 (Interim Order) the Court had directed that the linking of Aadhar with bank accounts and mobile numbers needs to be carried out by 31 March 2018, based on statements made by the Attorney General that most Ministries and Departments of the Government have designated this deadline for linking Aadhar to their respective services. In doing so, the Court had overruled its order in Lokniti Foundation vs. Union of India ((2017) 7 SCC 155)(where the deadline for completing Aadhar based e-KYC for mobile phone subscribers was fixed for 6 February 2018). Further, it was brought to the notice of the Court on 13 March 2018 that according to the Passports (1st Amendment) Rules, 2018, Aadhar credentials are mandatorily required to be provided if an application is made under the ‘Tatkal’ scheme. Therefore, the Order also includes a mention of passports.

The Interim Order had been passed in furtherance of earlier orders of the Court dated 23 September 2013, 24 March 2014, 16 March 2015, 11 August 2015 and 15 October 2015. All of these orders have, in essence, emphasised the voluntary nature of the Aadhar scheme and propounded that an individual cannot suffer merely because they have not obtained an Aadhar registration. Simultaneously, the Court has consistently insisted for the expeditious conclusion of the matter so that the controversy can be put to rest.

Vide order dated 11 August 2015, the Court directed the Government of India and Unique Identification Authority of India (UIDAI) to inter alia widely publicise that it is not mandatory to obtain Aadhar card and that production of Aadhar number shall not be a condition for obtaining any benefits.  The Court had, however, carved an exception for Aadhar to be used for public distribution system schemes and in particular for distribution of food grains, kerosene and LPG. Notably, this exception continues even today.

This was followed by the landmark judgment of the Court on 24 August 2017 (Privacy Judgment), where the ‘right to privacy’ was recognised and declared as a fundamental right. Based on the Privacy Judgment, several petitioners have contended that the requirement to provide biometrics violates the ‘right to privacy.’ During the course of the hearing on 15 December 2017, it was also argued that the Union ought to have sought a variation in the order dated 15 October 2015 (which clearly stated that the requirement to provide Aadhar details for various purposes cannot be made mandatory till the matter is finally adjudicated upon) before it enacted the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhar Act).

Comment

Ranging from suspicions with regard to untethered access by the Government, to concerns about safety of data, the Aadhar scheme has been marred with controversy from its very inception. Recently, the purported ‘security breach’ or, as some would like to refer to it, an episode of “unauthorised access,” has raised several questions and brought out its vulnerabilities to the forefront. Regardless of claims made by the Government, UIDAI and several proponents of the Aadhar scheme, there is a significant degree of trust deficit between them and the public, which is constantly fuelled by such instances.

On the other hand, the Privacy Judgment has provided an impetus to this discussion and garnered awareness and interest of people with respect to this topic. Further, with the discussion around the proposed framework for data protection legislation in India, which is being spearheaded by the Justice BN Srikrishna Committee, the concept of ‘informed consent’ and ‘purpose limitation’ has assumed unprecedented importance.

The Order comes at an interesting time. In the present environment, the Government will have to expend extraordinary effort in restoring the faith of the people in the Aadhar scheme. The Court has expressed that this issue must be decided at the earliest so it will be interesting to see how the hearing progresses. In the meantime, the Order is a blessing in disguise for the common man who now does not have to meet a deadline that was just around the corner.