The State, in the Aadhaar hearings yesterday, finally admitted that there never was any direction from the Supreme Court to mandatorily link Aadhaar to SIM cards. Activists had been pointing this out ever since the several SMSes threatening to deactivate SIM cards surfaced in early 2017. Lack of clarity on the issue led to the government widely citing the Supreme Court order in question to not only mandate Aadhaar SIM linking but also as proof of Court’s support to Aadhaar.
The government’s turnaround in yesterday’s hearings comes as a vindication for these activists, proving that there was no foundation or judicial backing to its move to mandate Aadhaar linking to mobile numbers. The admission made this late in the day when the Aadhaar hearing has almost concluded, unfortunately, offers little else.
Foundation for the Aadhaar-SIM linking: Lokniti case
The government’s direction for Aadhaar-SIM linking was based on a direction of the Supreme Court made back in 2017. There, the Court was hearing a petition filed by the Lokniti Foundation seeking a 100 percent verification scheme for mobile numbers, to deal with the use of mobile phones numbers for domestic criminal and terrorist activity. In this case, the then Attorney General brought the Aadhaar eKYC process to the Court as an effective measure to conduct the verification. In view of this, the Court directed ‘a’ verification to be conducted, within one year, for all existing and new mobile numbers.
The DoT order mandating the linkage
In particular, and as pointed out by the Supreme Court in yesterday’s Aadhaar hearings, the Court had never specified that the verification was to be conducted via Aadhaar only. Its directions, however, were conveniently misinterpreted, leading to the issue of an order by the Department of Telecom in March 2017, mandating an Aadhaar-based verification for all mobile phone subscribers. The order, quoting the Supreme Court’s order to conduct verification in a year, decided on Aadhaar-based eKYC for the verification and issued directions accordingly.
No SC order mandating Aadhaar SIM linkage
Two crucial factors, which were widely misinterpreted, based on these events are: the Supreme Court never mandated the verification to be conducted via Aadhaar, and second, it was the DoT’s decision to use Aadhaar mandatorily. The wide-spread stand of the government, however, was that it was the SC that had directed mandatory Aadhaar-SIM linking.
Government on extending the Aadhaar-SIM linking
The government went on to use this stand, not only to further force Aadhaar onto the people through the mandatory SIM linking, but also to try and prevent any relief through an extension of the linking deadlines, as repeatedly prayed for by the petitioners in the Aadhaar case.
The repeated requests for interim orders by the petitioners were, first that the linking violated the right to privacy, and second for extension of the deadlines for Aadhaar SIM linking, which had been refused by the Court. The Attorney General had quoted the government’s misinterpreted version of the Supreme Court’s directions in the Lokniti case — that there was a Supreme Court order directing the linking to be completed by 6 February, 2018, to refuse to extend the deadline. The same stand was reiterated even when the Court finally did extend this deadline to 31 March, 2018, in its interim order in December, 2017 (see Page 6).
Government on SC’s ‘support’ to Aadhaar
Further, the government also cited the Supreme Court’s order as proof of the Supreme Court’s support to the Aadhaar system. This can be seen in the case of Binoy Viswam v. Union of India, the Aadhaar-PAN judgment, where the Attorney General argued that the ‘importance and utility of Aadhaar for… verification of mobile numbers has been endorsed and recommended by this Court” (para 60). It was further argued that the case had ‘approved’ Aadhaar based verification (para 66):
“In the case of Lokniti Foundation v. Union of India & Ors., this Court has disposed of the writ petition while approving the Aadhaar based verification of existing and new mobile number subscribers and upon being satisfied that an effective process has been evolved to ensure identity verification.”
A similar paragraph, in fact, also finds place in other documents like the Draft Bill for Human DNA Profiling (Para 4.38, Page 27), in the discussion on constitutional law on privacy (incidentally, the Lokniti Foundation had also filed a case seeking a national DNA database for the DNA of unclaimed bodies).
Mandating Aadhaar through the lack of alternatives
The fault of the Department of Telecom in issuing this order was not so much with prescribing Aadhaar eKYC, but with the failure to prescribe alternatives. This, in fact, sums up the crucial issue with Aadhaar, with the government making Aadhaar mandatory for everything, quite simply through refusing to recognise any other form of identification for the services/ benefits in question.
The result is clear, that the so-called voluntary scheme has been made mandatory this way for almost everything. And this is despite Supreme Court orders against it being made mandatory for anything other than six services (the 2015 order), despite nothing in the Aadhaar Act itself permitting it to be made mandatory for anything other than the Section 7 benefits, and despite the ongoing Court hearings on the issue. The lack of alternatives to Aadhaar, in fact, leads to one of the most crucial issues with Aadhaar — Aadhaar based exclusion.
The push to make Aadhaar mandatory, one way or the other
In particular, the Supreme Court, in the Aadhaar-PAN judgment, had observed that the issue of whether the Aadhaar scheme ‘should remain voluntary or it can be made mandatory imposing compulsiveness on the people’ was an issue to be decided at a later stage. The intention is clear, pending the Supreme Court’s final verdict on the issue, Aadhaar cannot be made mandatory.
Yet there are repeated directions of the government mandating the linking of Aadhaar and even threatening deactivation, be it of mobile numbers, PAN cards, bank accounts or essential services like the Section 7 benefits, all of which are essential to a person’s daily life, and also their survival. Incidentally, the DoT order on Aadhaar-SIM linking, never even directed that SIM cards were to be deactivated. Yet, this was the message that was spread far and wide.
It is clear that there has been a push to make Aadhaar mandatory, regardless of anything — the risk to and consequences for the people, the democratic process, and even the Supreme Court. This can be seen, be it with the Aadhaar Act enacted to circumvent the 2015 order of the Court directing that Aadhaar cannot be made mandatory, or the now admitted misinterpretation of the Court order in the Lokniti case, to make Aadhaar mandatory for mobile numbers.
Having almost reached the conclusion of the Aadhaar hearings, however, now simply the Court’s final decision on Aadhaar will have to be awaited.