• Friday, May 19th, 2017

Praveen Dalal 1Rule of law, human rights, fundamental rights and civil liberties protections are essential attributes of a democratic country. In contrast, a totalitarian state and police state is a sure sign of death of rule of law and human rights. India is presently in a metamorphism stage where it is turning into an Orwellian state from a democratic and rule of law governed country. All this is happening because of forced imposition of Aadhaar upon Indians and a lethargic Supreme Court that is no more interested in protecting fundamental rights and rule of law in India.

The problem with the Supreme Court is that it cannot say that Aadhaar is mandatory and constitutional as Aadhaar is clearly unconstitutional and deserves to be scrapped. Warnings about Aadhaar were given by us as early as 2010 and since 2012 we have been cautioning Supreme Court about unconstitutional biometrics collections of Indians. So neither Indian government nor Supreme Court can now say that they were not forewarned regarding Aadhaar at early stage of this Orwellian project that is the worst digital panopticon of human history.

Meanwhile two more constitutional frauds were committed by Indian government when the Parliament passed the Aadhaar Act and Finance Act as money bills. Clearly, none of them is a money bill and the constitutionality of Aadhaar Act has already been challenged before the Supreme Court.

But this entire scenario of Aadhaar has put a question mark on the credibility and legitimacy of Indian Supreme Court. What type of Supreme Court would prefer to support an oppressive technology like Aadhaar over fundamental rights and constitutional supremacy? Presently Indian Supreme Court is the one that prefers suppression and killing of rule of law and Indian Constitution over Aadhaar. But Aadhaar can never pass the test of constitutionality. This is the reason why Supreme Court issued interim orders making Aadhaar optional for welfare, non welfare, government, private or any other types of services provided to Indian citizens. Supreme Court has also clarified that Aadhaar would remain optional till the matter is decided by the court one way or the other. Clearly, Supreme Court has not decided this issue conclusively and the interim orders are still in force.

Now the government has pleaded before the Supreme Court in Section 139AA and benefits under Aadhaar Act petitions that Finance Act and Aadhaar Act have overruled the interim orders of Supreme Court. The logic given is that the restrictions of Supreme Court were imposed against the Executive and not Parliament. The viability of this legal argument is in serious doubt but we would not touch this issue at this stage. What we would like to say is that neither the Aadhaar Act nor the Finance Act has affected the applicability of interim orders of Supreme Court even with the help of these money bills as they are constitutional frauds. Above all, neither Aadhaar Act nor Finance Act has removed the basis of the interim orders of Supreme Court and as such cannot affect these interim orders.

So the constitutional position as in existence till May 2017 is that Aadhaar is not mandatory for any welfare, non welfare, government, public or any other type of services and this applies to Section 139AA requirements and services mentioned under the Aadhaar Act as well. As petitions against Section 139AA and services under Aadhaar Act are pending before the Supreme Court, it would not be wise to deliberate more upon this aspect as on date. But in all probability, very soon two separate Division Benches of Supreme Court would reiterate that Aadhaar is optional and it cannot be made mandatory for Section 139AA or services under the Aadhaar Act.

However, till such judgments are delivered or interim reliefs are granted, we must use the existing interim orders of the Constitution Bench of Supreme Court that is binding upon both the Division Benches of Supreme Court, Executive, Parliament and agencies/departments of Indian government. While the judgement for Section 139AA petition can be pronounced any time yet petition for services under Aadhaar Act has been posted for further hearing on 27-06-2017.

No matter how much Indian government and Supreme Court drag their feet, Aadhaar would always remain unconstitutional, optional and an e-surveillance tool in the hands of Indian government and its agencies. It is high time for the Supreme Court to regain its lost legitimacy and respect by declaring Aadhaar as unconstitutional and destroying the biometric and other databases collected by Indian government.

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