Why SC has a problem with Mamata Banerjee government’s petition on Aadhaar
The big legal story opening the week might be a bit of a dampener. The Supreme Court of India has adjourned the hearing on the petition filed by Trinamool Congress leader and West Bengal chief minister Mamata Banerjee on linking Aadhaar to various welfare schemes and services, saying that the state and the CM in official capacity cannot challenge a central law, but an individual can, so she should instead come forward as an individual petitioner.
It must be noted that the apex court has not dismissed the petition, which it was hearing along with another on the mandatory Aadhaar-mobile link as dictated by the department of telecommunications (DoT) circular that’s being used by telecom companies to demand that the UID be linked to the customers’ mobile numbers in order to continue to avail the services. Moreover, SC is also hearing a bunch of other petitions on the same issue, as well as a fresh PIL challenging Section 139AA of the IT Act that mandates Aadhaar be linked to PAN for income tax payments.
Mamata versus SC
In this particular case, the West Bengal government's petition is separate from 22 others challenging the linking of Aadhaar to different welfare schemes, as well as for services such as income tax filing or to mobile phones. The latter pleas were transferred to a five-judge Constitution bench of the country's most senior judges, headed by Chief Justice of India, Dipak Misra.
In the instance of Mamata Banerjee’s petition as West Bengal CM, the Supreme Court has explained that a central law, passed in Parliament, cannot be challenged by the state governments, as that’s not allowed in the Constitution. In Indian law, central legislation would take precedence over state legislation unless otherwise specified within the law.
However, the constitutionality of the law itself can be challenged, but that must come via a public interest litigation (PIL) from concerned individual/s, civic bodies, et al. The court said the petition, represented by Congress leader and lawyer Kapil Sibal, violated the federal structure as it could also lead to the Centre challenging a state law in future.
#Aadhaar: Tomorrow, Centre will challenge a law made by State? Sibal, you are more matured than us." AK Sikri J remarks
— Bar & Bench (@barandbench) October 30, 2017
“In a federal state, how can one state government challenge a law passed by Parliament. There is no doubt it (Aadhaar) needs examination but the prayer can’t be entertained,” a bench of justice AK Sikri and justice Ashok Bhushan said. It added: "Let Mamata Banerjee come and file a plea as individual. We will entertain it as she will be an individual."
#Aadhaar: "How can a State challenge a law by Parliament? Let an individual come, let Mamata Banerjee come", Supreme Court in petition by WB
— Bar & Bench (@barandbench) October 30, 2017
Making Aadhaar-mobile link mandatory is illegal
Expert opinion, particularly from legal and rights activists, firmly believes that DoT is treading on shaky legal ground by mandating that Aadhaar be linked to mobile phones. In addition, the DoT circular cited stray, out of context sentences from a dismissal order in February this year – in a case known as Lokniti Foundation v. the Union of India – and cannot be used to force Aadhaar on people.
According to advocate Apar Gupta, “Such justification is at best suspect and at worst damages the institutional credibility of the Court... While the lexicology of Aadhaar may now define ‘voluntarily’ to mean as ‘mandatory”, the lex still recognises a distinction between an ‘observation’ and a ’direction’.”
Aadhaar exclusions
In addition, there have been a number of highly cited reports on death by starvation because of state government diktat forcing Aadhaar link to PDS rations in order to avail them, particularly in BJP-ruled states like Jharkhand. The poor and vulnerable are dismissed as “ghosts” and “frauds” while authentication errors lead to many going hungry.
As the Centre is hellbent on linking Aadhaar to almost every service, public and private, in India, the gross violations of fundamental rights, and the resultant exclusions have been documented meticulously. In states like Jharkhand and Rajasthan, the poor have been left out of the Aadhaar-driven PDS because of “authentication failures”. Civil rights activists Aruna Roy and Nikhil Dey have repeatedly drawn our attention to the hard facts on the ground – how the poor and the vulnerable are denied rations, work, services, skills training, even pregnancy care because they lack Aadhaar.
Only modified, not dismissed
It must be noted that in the case of the privacy judgement, states such as West Bengal, Kerala, Karnataka, among others, were petitioners in a plea that concerned jurisprudence on whether or not privacy was a fundamental right. The current case is different as this challenges a central law, and not the very idea of what is the limit of our fundamental rights as citizens of the Indian democratic republic.
So, Mamata Banerjee’s plea on Aadhaar’s mandatory nature has been asked to be modified by the Supreme Court, and it has certainly not been dismissed. Moreover, Banerjee has accepted the court's observations: “We accept the Supreme Court's observations. They have not rejected my petition.”