Aadhaar Cannot Be Declared As Fait Accompli By Supreme Court Due To Truth, Fundamental Rights And Indian Constitution

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBAadhaar is one of the most controversial projects of Indian government. What makes Aadhaar controversial and dangerous is that it suffers on the fronts of constitutionality, civil liberties, cyber security, cost, technology neutrality, etc. This list making Aadhaar undesirable is long and its detailed analysis is beyond the scope of this article. What this article is trying to enunciate is that Aadhaar can never get the status of fait accompli.

So what is fait accompli? Fait accompli is a French term that means “an accomplished deed”. It is commonly used to describe an action which is completed before those affected by it are in a position to query or reverse it. A near English equivalent in certain usages is “a done deal”.

Some have expressed the fear that Aadhaar may be declared as fait accompli. However, this is not possible due to the constitutional safeguards that have been provided by Indian Constitution. Declaring Aadhaar as fait accompli would result in accepting that Indian Constitution, rule of law, fundamental rights, etc have ceased to exist. Supreme Court cannot afford to take that position as the first institution that would be affected by this declaration would be Supreme Court itself. Nobody would bother about Supreme Court in that situation because if Supreme Court cannot protect Indian Constitution and fundamental right, it is good for nothing.

Supreme Court is already behaving like a populist one if we analyse the recent negative constitutional developments. It has lost its legitimacy and credibility to a great extent due to its unconstitutional dealing of the Aadhaar episode. Everybody is aware that Supreme Court is deliberately stalling the proceedings so that government can trap maximum number of people for Aadhaar. If the guardian of Constitution and fundamental rights is failing the people of India, citizens are the last line of defense against government excesses and Aadhaar.

Aadhaar cannot be demanded by Indian government even for services falling under the Aadhaar Act till Supreme Court decides in its favour. That eventuality is not going to happen even if a single person is standing against unconstitutional and rule of law violating Aadhaar. We at Perry4Law Orgnisation (P4LO) are committed to fight against judicial, legislative and executive dystopia in India. People of India can always count upon Perry4Law Organisation as the last man standing against the Orwellian Aadhaar. We are committed to fight against the unconstitutional and evil Aadhaar till it is scrapped and the unconstitutionally collected biometric(s) are safely destroyed.

Now let us come back to the issue of fait accompli. Firstly, Indian government is systematically feeding lies to Indian citizens, media houses and even Supreme Court. Unfortunately Supreme Court is allowing Indian government to continue with its lying for the simple reason that Aadhaar can become omnipresent. But despite concerted efforts of Indian government, media houses and Supreme Court, Aadhaar may not have touched even 50% enrollment. So if Indian government and Supreme Court are telling you that 99% adults have enrolled for Aadhaar that is pure lie and nothing else. Do not believe in that lie without proper audit by a constitutional body keeping in mind dead people, duplicates, illegal Aadhaar, etc. So the core ingredient of fait accompli is missing i.e. Aadhaar is a major failure despite coercion, lies, arm twisting and support of Supreme Court of India. Till a constitutional body of strong and credible credentials come up with actual figures of Aadhaar enrollments, government lies cannot be taken on face value by Indian citizens and even by Supreme Court.

Secondly, even if 1% population of India remain outside the purview of Aadhaar, the same cannot be declared to be fait accompli as those people have not yielded to the arm twisting techniques of Indian government. They would still demand enforcement of their fundamental rights even after false government claims of 99% enrollment of Aadhaar. Supreme Court cannot deny providing protection to that 1% in any case.

Thirdly, Supreme Court has no power to even curtail, much less abrogate, fundamental rights of Indian citizens and residents. This is the reason why the Constitution Bench of Supreme Court was forced to issue an interim order that declared Aadhaar as purely voluntary and optional. The same interim order is still in force even after the passing of Aadhaar Act, 2016 and Finance Act. These two Acts have changed nothing as far as that interim order is concerned and Indian Citizens can quote the same while facing coercion, arm twisting and force to enroll or seed their Aadhaar. This is because no law can abrogate fundamental rights whether Supreme Court says it or not and interim order of Supreme Court is recognition of that constitutional reality. This constitutional reality cannot be ignored or bypassed by even the Supreme Court of India.

Fourthly, Supreme Court and Indian government cannot take advantage of their own wrongs. Indian government has adopted all the dubious means to make Aadhaar mandatory by even indulging in contempt of court. After contempt, Indian parliament introduced Aadhaar Act, 2016 as the money bill, whose constitutionality has already been challenged before Supreme Court. However, just like constitutionality of Aadhaar, Supreme Court is sitting upon the issue of deciding about the constitutionality of money bill enacting Aadhaar Act, 2016 as well. Supreme Court and Indian government have been engaging in gigantic and unconscionable abdication of constitutional duties.

Fifthly, this is the first time in independent India’s history that all the three organs of Indian Constitution i.e. Executive, Parliament and Judiciary have acted in complete harmony and concert to kill fundamental rights and rule of law in India. From executive order of launching Aadhaar project and establishing UIDAI to passing of the Aadhaar Act, 2016 as a money bill to sitting upon the issue of constitutionality of Aadhaar, all three have acted as if they are hand in glove.

So if Executive, Parliament and Judiciary are hell bent to destroy Indian Constitution, fundamental rights and rule of law, there is nothing wrong if citizens decide to ignore their decisions. This would result in chaos and anarchy but at least the myth about existence and continuance of Indian Constitution, fundamental rights and rule of law would be busted.

So Supreme Court cannot declare Aadhaar to be a fait accompli due to the truth, constitutional protections/fundamental rights and Indian Constitution. If it does, we are the last line of defense and we must do whatever it takes to protect our human rights and civil liberties.

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