Sunday, December 25, 2016

Orders of Supreme Court & Calcutta High Court on 12 digit Biometric UID Aadhaar Number

Justice Joymalya Bagchi of Calcutta High Court passed an order on November 30, 2016 on Biometric UID Aadhaar Number saying, "Aadhaar  Card by itself shall not confer  any right  of  or  be  proof  of, citizenship  or  domicile  in  respect  of  the  holder  thereto.    Apart  from the said Card, the letter issued by the representative of the local body as  to  the  residence  of  the  petitioner  also  does  not,  ipso  facto,  confer citizenship on the petitioner. Under such circumstances, I am unable to rely on the aforesaid documents  as  prima  facie  proof  of  citizenship  in  favour  of  the petitioner."

Besides "materials  collected  during investigation", Justice Bagchi relied on Section 9 of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 which reads: "The Aadhaar number or the authentication thereof shall not, by itself, confer any right of, or be proof of, citizenship or domicile in respect of an Aadhaar number holder” to arrive at the decision.     

But a careful reading of Section 2 (v) of the Act may give a different meaning to the expression "domicile". This Section reads: " 'resident'  means  an  individual  who  has resided in India  for  a  period  or periods amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of application for enrolment." In law, domicle means the country that a person treats as their permanent home, or lives in and has a substantial connection with. It seems there is some inconsistency between Section 9 and Section 2 (v) of the Act.   

Earlier, in Khan Mazdoor Karmachari Union V Union of India (W.P. 10202 (W) of 2015) Justice Subrata Talukdar of Calcutta High Court had passed an order in the matter of biometric identification of workers, which appeared quite disappointing.  It is apparent that the Court has been misled as full facts have not been presented to it. The case against mandatory UID/Aadhaar Enabled Biometric Attendance System filed by the trade union needs to be appealed before a Division Bench at the earliest. But it is sad to note that although Calcutta High Court gave its order on November 2, 2016, the same was communicated by Mr Srijan Nayak, their lawyer on November 23, 2016. The delay was/is inexplicable and puzzling. It is reliably learnt that the case was disposed of on the very first date of hearing. It seems the trade union officials were not informed about the date of hearing.

It appears that Mr Srijan Nayak could not communicate the core arguments against mandatory UID/Aadhaar Enabled Biometric Attendance System on behalf of the trade union. it seems he could not communicate
Supreme Court's Constitution Bench order dated 15th October 2015 (reiterated by the Court on September 14, 2016 after the enactment of Aadhaar Act, 2016) stating that Aadhaar cannot be made mandatory for anything.

Having read the communication, it is quite clear that Eastern Coal Fields (ECL) has violated the Supreme Court's order. All the High Courts which have heard the case against mandatory 12 digit UID/Aadhaar Number related initiatives have cited the SC order and have given relief to the petitioners. Calcutta High Court's order appears strange especially because it does not refer to relevant order of the Supreme Court.

Trade union involved in the case underlined that this case was/is a bit distinct from UID/Aadhaar. The ECL had implemented bio-metric system of attendance that though is meant for taking attendance in fact is a means of taking the entire biometric information of the worker. The union has learnt that the management of ECL and Coal India has issued a directive asking all the workers to get their adhaar card prepared else their salary would not be disbursed. 

It may be recalled that Supreme Court is seized with TRANSFERRED CASE (CIVIL) NO.151 OF 2013, TRANSFERRED CASE (CIVIL) NO.152 OF 2013, WRIT PETITION (CIVIL) NO.829 OF 2013, WRIT PETITION (CIVIL) NO.833 OF 2013, WRIT PETITION (CIVIL) NO.932 OF 2013, TRANSFER PETITION (CIVIL) NO.312 OF 2014, TRANSFER PETITION (CIVIL) NO.313 OF 2014, WRIT PETITION (CIVIL) NO.37 OF 2015, WRIT PETITION (CIVIL) NO.220 OF 2015, TRANSFER PETITION (CIVIL) NO.921 OF 2015, CONTEMPT PETITION (CIVIL) NO.144 OF 2014 IN WP(C) 494/2012, CONTEMPT PETITION (CIVIL) NO.470 OF 2015 IN WP(C) 494/2012 and others besides Justice K.S. Puttaswamy (Retd.) V Union of India & Others [Writ Petition (Civil) No.494 of 2012]. 

Supreme Court’s orders on 12 digit biometric Unique Identification (UID)/Aadhaar Number keeps UID/Aadhaar voluntary. In case anyone faces problems due to orders which are making biometric Unique Identification (UID)/Aadhaar Number compulsory, one can use these orders to save oneself from the tyranny of government and banking agencies.

The Aadhaar/ UID scheme is presently under challenge before the Supreme Court of India vide a batch of petitions led by W.P (C) 494/2012 and the  Court after hearing the parties has passed a series of interim orders starting the 23rd September 2013 and the last of which was passed on 15.10.2015 which, *inter alia*, states as follows.

*4.We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013. *

*5. 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.*

In the related case the Supreme Court in SLP (CRl) 2524/2014 *Unique Identification Authority of India* Vs *CBI* passed an order dated 24.3.2014 which reads as follows:

                        “More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith. Tag and list the matter with main mater i.e. WP (C) No. 494/2012.”

As per the order dated 15th October, 2015 Chief Justice of India headed 5-judge Constitution Bench, all the orders of Supreme Court are still in force and they will remain in force till the time court itself does not waive them. The Court’s order makes it clear that UID/aadhaar remains voluntary.

Therefore, no one can be asked to produce UID/Aadhaar for disbursement of all Government subsidies/Scholarships/Fellowships which are to be disbursed directly into the beneficiaries' account.

The relevant facts UID/Aadhaar are as under:
1.          UID/Aadhaar cannot be made compulsory because of orders of Supreme Court even after 'coming into force' of Aadhaar Act, 2016
2.         Passage of the Act by Parliament does not automatically imply that any agency can make UID/Aadhaar compulsory disregarding Court’s orders.
3.         Even after notification of 'coming into force' of Aadhaar Act 2016 UID/Aadhaar, it cannot be made compulsory unless Hon’ble Supreme Court waives its order on request from the Union of India

The orders have been reiterated in a Supreme Court's order of 14 September, 2016. The matter will be mentioned before the new Chief Justice of India after January 4, 2017.

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