Since the Aadhaar programme, which aims to provide Indian citizens with unique identification numbers, was launched in 2009, several petitions have been filed before the Supreme Court that oppose its application by the government. These petitions have challenged the Aadhaar programme on various grounds: the government’s right to ask the citizens to provide biometric data for Aadhaar verification without adequate safeguards against its potential misuse; the legality of the mass collection of data; and whether having an Aadhaar number can be made mandatory for availing benefits from state welfare schemes. The court has ruled on several petitions that question the linking of Aadhaar to state programmes: it has repeatedly said that the Aadhaar card cannot be made a mandatory requirement to avail government services, benefits and subsidies.
On 23 September 2013, the Supreme Court passed an interim order on a batch of such petitions, led by a writ petition filed by KS Puttaswamy—a retired judge of the Karnataka High Court, who had challenged the government’s decision to issue Aadhaar cards and link them with various government benefits or schemes. The court noted that, “no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory.” Every year since then, the Supreme Court has consistently held that the Aadhaar card cannot be made mandatory until the matter is finally heard and disposed by the court.
In 2014, the Supreme Court stated that, “no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled.” It directed all authorities in the country to modify any forms or circulars in order to ensure that the Aadhaar number was not a mandatory requirement. In August 2015, after the central government argued that the Constitution does not grant a “right to privacy,” and that since this right did not exist, the Aadhaar scheme could not violate it, a three-judge bench of the Supreme Court referred the batch of petitions to a larger bench. On 15 October 2015, the three-judge bench responded to an application requesting clarification on its August order, and stated, “We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.” The court also directed the central government to “strictly follow all the earlier orders passed by this Court commencing from 23.09.2013.”
In March 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act was enacted. A section of the act appeared to state that the Aadhaar number could be mandatory—according to section 7 of the act, central and state governments may require citizens to undergo authentication or furnish their Aadhaar number in order to establish their identity to avail a subsidy or a benefit. Nevertheless, on 14 September 2016, while ruling on a petition challenging the University Grants Commission’s decision to make Aadhaar card mandatory for application to government scholarships, the court upheld its October 2015 order, and stayed the operation and implementation of the UGC decision.
The same day the court issued the UGC order, the Unique Identification Authority of India (UIDAI)—the authority responsible for issuing and authenticating Aadhaar numbers—notified five regulations on the issuance and administration of Aadhaar numbers. The next day, the UIDAI issued a circular containing a guideline for central ministries or state governments planning to use Aadhaar numbers for services, benefits and subsidies. The circular said that any notification issued by these bodies shall make it mandatory for “a beneficiary applicant to undergo Aadhaar Authentication or furnish proof of possession of Aadhar number.” It further added that individuals who do not possess an Aadhaar number could provide alternative identity documents “till such time Aadhaar number is assigned.” Effectively, the circular meant that central ministries or state governments could make Aadhaar numbers mandatory at their discretion.
The Supreme Court is yet to rule on the Aadhaar regulations or the circular. The batch of petitions challenging the Aadhaar Act has not been heard since October 2015, when it was referred to a larger bench. While referring the petitions, the court said: “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.” On 5 January 2017, Shyam Divan, a senior advocate, requested a three-judge bench that included JS Khehar, the newly appointed Chief Justice of India, to expedite the hearing of the petitions. The bench declined his request.
Below is a list of ten instances since October 2015 in which state and central governments have made the Aadhaar number a mandatory requirement for a service, benefit or subsidy.
Maharashtra state board exams
In September 2016, the Maharashtra State Secondary and Higher Education Boards announced that students filling forms for their respective state board examinations would have to fill in their Aadhaar numbers. The forms for the examinations, which will be conducted in February and March 2017, were accepted from 1 October till 24 October 2016, and mandatorily required students to fill in their Aadhaar card numbers. According to a report published on the financial news website Moneylife, on 21 September, Pramod Patil, a section officer in the education department of the Bharatiya Janta Party-led state government issued a letter on an “urgent” basis to the chairman of the education board. Patil directed the chairman to obtain the Aadhaar numbers of every student who would appear in the senior secondary and higher secondary examinations across the state. On 23 September, The Hindu reported that the Maharashtra government also asked all schools in the state to ensure that every student had an Aadhaar number by the end of the month, and to upload these numbers to the school website.
In early October 2016, the petroleum ministry issued an order stating that stated that “individuals desirous of availing LPG subsidies” would be “required to furnish proof of possession of Aadhaar or undergo Aadhaar authentication.” The order granted a period of two months, till 30 November 2016, to apply for an Aadhaar number, after which an Aadhaar card or proof of request for Aadhaar enrolment would be necessary for availing the LPG subsidy.
Admission under Right to Education Act in non-minority schools in Karnataka
On 11 November 2016, the Department of Public Instructions in the Congress-led Karnataka state government issued a press release. The release stated that parents applying to admit their children into non-minority schools for the 2017–2018 academic year, under the provisions of the Right to Education Act, would be required to include the Aadhaar number of the child and of one of the parents. The RTE act provides for 25 percent reservation for students belonging to economically and socially weaker sections in private unaided schools. According to the press release, parents were required to submit the documents before 31 December 2016. It further stated that “only if the Aadhar [sic] number and certificates are found to be genuine, then the application would be accepted. Otherwise, the applications would be rejected on the spot.”
Joint Entrance Examination (JEE) Main examination
The Central Board of Secondary Education is the central government body that conducts the joint entrance examination (JEE)—the common engineering entrance examination for various engineering colleges across India, including the National Institutes of Technology. In November 2016, the CBSE issued a notice stating that candidates who wished to appear in the JEE Main examination in 2017 would necessarily have to provide their Aadhaar card number while filling the application form. The notice added that applicants who had not yet enrolled for Aadhaar numbers would be required to apply, and that the CBSE had “specially set up facilitation centres in each city of examination for the purpose of Aadhaar enrolment.” Reportedly, the CBSE has also made Aadhaar mandatory for enrolment for the National Eligibility cum Entrance Test, the common examination for medical colleges in India.
Airport Entry Passes for employees
The Bureau of Civil Aviation Security, an agency under the central civil aviation ministry, issued an order on 29 November 2016, stating that any employee working at any of the airports across the country would be required to furnish their Aadhaar number to obtain the mandatory Airport Entry Passes. The AEP is generally issued for one calendar year, and is used by every employee, including the Central Industrial Security Force personnel. The BCAS order was implemented beginning 1 January 2017.
Discount for senior citizens in the Indian Railways
In December 2016, the railway ministry decided to implement an Aadhaar-based ticketing system for senior citizens to avail ticket concessions. The new system has been divided into two phases: from 1 January to 31 March 2017, Aadhaar verification for concessional tickets for senior citizens will be optional; beginning 1 April, it will be mandatory. AK Manocha, the chairman and managing director of the Indian Railway Catering and Tourism Corporation, reportedly said that the rationale behind the mandatory Aadhaar card requirement was to “end fraudulent bookings and curb cases of impersonation.” “In future, all ticket bookings will require Aadhar card,” he added.
Railway Recruitment Board examination
The railway recruitment board of the Indian Railway also issued a notice in December 2016, which stated that “in all future railway recruitments, the applicant shall be required to furnish his/her 12 digit Aadhaar number or 28 digit Aadhaar registration receipt.” The notice relied upon Section 57 of the Aadhaar Act, which permits the use of an Aadhaar card to establish the identity of an individual, and states that the requirement of the Aadhaar card is critical for the “prevention of attempts at impersonation.”
Uttar Pradesh State Entrance Examination
The UPSEE is conducted by the state government-run Dr APJ Abdul Kalam Technical University in Lucknow for gaining admission to its 841 institutes. According to a report published in the Hindustan Times, Ashish Mishra, the public-representative officer of the university, stated that its administration had made the Aadhaar number a compulsory requirement for all students applying to take the examination in 2017.
National Rural Employment Guarantee Programme
On 3 January 2017, the rural-development ministry issued a notification stating that any individual registering under the National Rural Employment Guarantee Act would be required to either “furnish proof of possession of Aadhaar or undergo Aadhaar authentication.” The notification said that individuals who did not have Aadhaar numbers would have time until 31 March 2017 to enrol for one. It added that an individual would be allowed to work under the NREGA without an Aadhaar card on the basis of other identification only “till the time Aadhaar is assigned to the individual.” According to a report in the Indian Express, in December 2016, nearly 77,721 active NREGA workers did not possess Aadhaar cards.
Employees’ Pension Scheme
On 4 January 2017, the labour and employment ministry issued a notification stating that “Members and pensioners of the Employees’ Pension Scheme desirous of continuing to avail pension and membership to the Employees’ Pension Scheme … are hereby required to furnish proof of the possession of the Aadhaar number or undergo Aadhaar authentication.” According to the EPS, the central government contributes 1.16 percent of an employee’s salary upto Rs 6,500 into the employee’s pension fund, which an employee can avail upon completion of ten years of service, and if the employee is 58 years of age or older. After the notification, the central government will no longer contribute this amount without the employee’s Aadhaar number. The notification further stated that an application for enrolment must be made by 31 January 2017 and alternative documents would be accepted instead of an Aadhaar card only until an Aadhaar number has been assigned.
Arshu John is an assistant editor at The Caravan. He was previously an advocate practicing criminal law in Delhi.