Aadhaar Has Created Serious Constitutional Anomaly. It Violates Fundamental Rights, Rule Of Law, Etc And Not Just Privacy Rights

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBConstitution of India is the supreme law of India that governs all other laws and activities of Executive, Legislature and Judiciary. None of them can go outside the limits prescribed by Indian Constitution. Part III of Indian Constitution confers invaluable and sacrosanct Fundamental Rights upon Indian Citizens and Person. Part III or any individual Fundamental Right cannot be abrogated or taken away by Executive, Legislature or Judiciary and Fundamental Rights remain inviolable.

The position is so firmly engraved into the Constitution that neither a normal law nor any Constitutional Amendments introduced by Parliament can change this position. Even if Supreme Court wishes to deviate from this position it cannot do so due to Constitutional Limitations imposed by Indian Constitution. So Fundamental Rights are immune from any type of tempering, dilution and abrogation, whether directly or indirectly.

In this background, we have to analyse the forced imposition of Aadhaar upon Indians. As Supreme Court is well aware of this position, a Constitution Bench of Supreme Court passed interim order restraining Indian Government from making Aadhaar mandatory. However, Indian Government continued its forced imposition and seeding of Aadhaar despite clear and unambiguous directions of the Supreme Court. Unfortunately, Supreme Court closed its eyes and ears towards this blatant Contempt of Court that it usually invokes even for borderline cases. In effect, Supreme Court helped Indian Government in violating Fundamental Rights of Indians by allowing continued use of Aadhaar on mandatory basis.

We now have a “Submissive Judiciary” that is very vulnerable to Executive interferences. Indian Judiciary has been so vulnerable only during physical emergency in the past and now during the “Digital Emergency” created by projects like Aadhaar, National Intelligence Grid (NATGRID), Central Monitoring System (CMS), CCTNS, etc. This digital emergency was inevitable as Supreme Court failed to fulfill its constitutional duties of protection of Fundamental Rights and Rule of Law.

Similarly, to facilitate Aadhaar dystopia and digital emergency, media is also playing a major role. Media is deliberately engaging in false reporting and creating fake news. Simple Supreme Court observations are often published as orders of Supreme Court. And genuine orders of Supreme Court making Aadhaar optional are twisted in favour of Aadhaar and Indian Government. In this digital emergency by government through Aadhaar, media was asked to bend but it started crawling.

We at Perry4Law Organisation (P4LO) wish to inform Indians that Aadhaar is absolutely optional for all purposes, including getting benefits of subsidy, direct benefit transfers (DBT), etc. This is the correct legal position even after the passing of Aadhaar Act, 2016, Finance Act or any other future law that may be passed by Indian Parliament. Government is misleading Indians that after the passage of Aadhaar Act, Aadhaar has become mandatory. That is not true as Aadhaar Act has not changed anything and Aadhaar is optional till the matter is decided by Supreme Court one way or the other.

The present legal and constitutional position mandates that Aadhaar is not mandatory for DBT, scholarships, healthcare services, government services, private services, welfare services, non-welfare services, bank accounts, mobile connections, obtaining ration, school children, college students or any other service that you can think of. Aadhaar is absolutely optional and any person, organisation, department, agency, etc, whether government or private, cannot ask for the same. If they/it ask for an Aadhaar, you can simply refuse it and give any other identity or know your customer (KYC) document like driving license, voter ID, ration card, government telephone or electricity bill (if accepted), etc.

This takes us to the litigation pending before the Supreme Court that it is deliberately delaying so that Indian Government can force maximum number of Aadhaar upon Indians. Supreme Court has been deliberately sitting upon Aadhaar issue and restraining from delivering judgments in a time bound manner to facilitate Indian Government in forcing Aadhaar. May be Supreme Court and Indian Government are hoping that this would result in a Fait Accompli situation. However, even after this unconstitutional support of Supreme Court, Aadhaar cannot be declared as Fait Accompli by Supreme Court. As Indian Government and Supreme Court are now aware of this “Constitutional Reality” and public outrage, the argument of Fait Accompli would not be raised.

So Indian Government and Supreme Court have devised another strategy in this regard. They would try to limit the arguments against Aadhaar to the aspect of “Privacy Rights” alone that is not acceptable. Aadhaar violates many Fundamental Rights under Part III and restricting its violation to an insignificant part of Article 21 (Privacy Right) is not acceptable. Supreme Court has to analyse the Unconstitutionality of Aadhaar from the perspective of all Fundamental Rights and Constitutional Rights violated by Aadhaar that includes Articles 14, 19, 21 and many other Articles of Indian Constitution.

Aadhaar would remain Unconstitutional even if the Government comes up with a law on Privacy as a statutory law can neither take away nor remedy a violative act of Government vis-à-vis Fundamental Rights. The core issue of Aadhaar before the Supreme Court is that it violates plethora of Fundamental Rights and not just Privacy. Violation of Privacy is just a sub set and insignificant part of disastrous violation of other Fundamental Rights and Rule of Law.

The truth is that Aadhaar has introduced a “Constitutional Anomaly” of gigantic proportions that our Government and Supreme Court want us to ignore and sideline. This “Constitutional Anomaly” can only be ignored if we ignore the very existence of Indian Constitution, Rule of Law and most importantly Indian Supreme Court. When the Supreme Court is incapable of protecting Indian Constitution, Rule of Law and Fundamental Rights, it ceases to be a “Constitutional Court”, much less “The Supreme Court”. Why do we need such a court at all if there is no “Separation of Power” between Executive, Legislature and Parliament? Executive imposed the Aadhaar and UIDAI; Parliament passed “Unconstitutional Money Bills” and Supreme Court helping Executive by sitting upon Aadhaar issues. Right now three organs of Indian Constitution are acting as if they are one and the same organ with no separation of power.

During the hearing of case of Section 139AA, as introduced by Finance Act, arguments touching Articles 14, 19, 21, etc were raised. As the Supreme Court restricted the hearing of Section 139AA to limited aspects only, not all arguments of unconstitutionality were made. But the hearing before the Constitution Bench cannot be restricted in any manner whatsoever and violation of every Fundamental Right and Constitutional Right can be argued for. Once argued, Aadhaar would be declared unconstitutional. This is the reason why Supreme Court has not constituted a Constitution Bench to hear about the constitutionality of Aadhaar. This delay in declaring Aadhaar as unconstitutional is only undermining the credibility and need of Supreme Court.

Now since Supreme Court is not willing to remedy the sufferings and violation of Fundamental and Constitutional Rights of Indians, it is imperative that Citizens themselves protect their own Fundamental Rights and Constitutional Rights. The starting point is to refuse enrollment for Aadhaar that is a complete failure so far. Despite Government claims of 99.9% enrollment, Aadhaar is not even 50% enrolled. A “Constitutional Body” can easily reveal this truth by eliminated bogus, duplicate, illegal and ghost Aadhaar numbers generated by UIDAI and its enrollment agencies. It is really surprising that Supreme Court blindly believes the lies of Indian Government regarding uses, benefits, enrollment percentage, savings, etc pertaining to Aadhaar. None of them is true and the entire edifice of Aadhaar is based upon lies, coercion, arm twisting and fooling Indian Citizens.

Even if you have been coerced into enrolling for Aadhaar, do not seed it with any government or private services including your bank accounts, mobile connections, school admissions, scholarships, etc. You must also block your biometric at the UIDAI website and deseed Aadhaar from services where it has already been seeded. Your Fundamental Rights empower you to block your biometric, deseed it from any service and even opt out of the Aadhaar system. Neither Government nor Supreme Court can prevent you from blocking of biometric, deseeding of Aadhaar and opt out of the Aadhaar system completely.

A little fight at this stage can save you and your children from becoming digital slaves of Indian Government forever. So have a spine and fight against Aadhaar whether it is supported by Executive, Parliament or even by Supreme Court.