Aadhaar is not Mandatory

Gopal Krishna

Questionable messages are being sent to Bank Account holders stating that biometric Unique Identification (UID), Aadhaar number is mandatory for banking operations. These messages are in violation of the Aadhaar Act, 2016, Hon'ble Supreme Court's orders in Writ Petition (Civil) No.494 of 2012 and the Terms and order Conditions of the Banks themselves.

After the 9th June verdict of Justice A K Sikri headed Bench of Supreme Court on 12 digit biometric UID/Aadhaar, it is eminently clear that UID/Aadhaar is voluntary under the Aadhaar Act, 2016.

As per the order of Supreme Court's 5-Judge Bench dated 15 October 2015, Aadhaar cannot be made mandatory for the purposes of linking to mobile phones. This has been reiterated by the Court on 9th June and 27th June, 2017.

The use of Aadhaar for linking to other databases, retention, storage or publishing is prohibited and is a punishable offence under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016.

The Terms and Conditions of the Bank state : "3. By agreeing to these terms and conditions, the customer shall be deemed to have voluntarily consented to authenticate themselves with Aadhaar based authentication system and hereby give their voluntary consentas required under the Aadhaar Act 2016 and regulations framed thereunder for seeding their Aadhaar number to all their bank relationships and to provide their identity information (Aadhaar number, biometric and democratic information) for Aadhaar based authentication for the purpose of availing of the banking services including operation of the bank account and for delivery of subsidies, benefits and service, or any other facility relating to the banking operations". Similar conditions are mentioned in the Application For Linking Aadhaar Number to Bank Account and Consent for Aadhaar Based Authentication, its URL has been disabled for some reason. It seeks an undertaking from the bank account holder saying ''2. I have no objection in Authenticating myself with Aadhaar based Authentication system and hereby give my voluntary consent in seeding my Aadhaar number to my bank account to provide my identity information (Aadhaar number, biometic information & demography information) for Aadhaar based authentication and/any similar authentication mechanism provided by the Government; from time to time, for the purpose of availing of the banking services including operation of account for delivery of subsidies, benefits and services or any other facility relating to banking operations. 3. Thereby give my voluntary consent in seeding my Aadhaar Number to all my existing and proposed/future bank accounts and to my customer profile."

From the above mentioned facts, the following issues are crystal clear:

1.     UID/Aadhaar cannot be made compulsory because of orders of the Supreme Court;

2.    Aadhaar Act 2016 does not make UID/Aadhaar compulsory;

3.    CIDR of UlD/Aadhaar number is not a verified or audited database, neither the UIDAI nor any other government authority certify it as a proof of identity, address, resident status or even the existence of any person;

4.    It is germane to note that this August 11, 2015 order of a three-judge bench of Justices Chelames-war, S A Bobde and Nagappan observed, "The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card; The production of an Aadhaar card will not be a condition for obtaining any benefits otherwise due to a citizen";

5.    The order dated October 15, 2015, passed by the Chief Justice of India-headed five judge Constitution Bench of Supreme Court in the UID/Aadhaar matter, reads: "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.

6.    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";

7.    This 'voluntary Aadhaar' position has been repeated by the High Courts of Kerala, Jammu and Kashmir, Karnataka and Andhra Pradesh;

8.    In a significant case, a Punjab and Haryana High Court bench headed by then Chief Justice A K Sikri (currently a judge of the Supreme Court) heard a matter challenging a circular making Aadhaar mandatory. The moment the Court raised questions of laws, the circular making Aadhaar mandatory was withdrawn by the central government;

9.    It must be noted that in keeping with Court's order West Bengal Assembly passed a unanimous resolution against Aadhaar number-related schemes in public interest;

10.  In a related case, the Unique Identification Authority of India (UIDAI) vs Central Bureau of Investigation (CBI), the apex court passed an order dated March 24, 2014, which read as follows: "More so, no person shall be deprived of any service for want of Aadhaar number in case he/she modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number". This order in the UIDAI vs CBI case is part of the "all the earlier orders passed by this Court" which is required to be followed "strictly". It is quite evident that repeated orders issued by Hon'ble Court till June 27, 2017 make it clear that UID/Aadhaar remains voluntary. Therefore, no one can mandatorily be asked to produce or link biometric Aadhaar for anything;

11.    The UID/Aadhaar enrolment process continues to promise Indian residents that "Aadhaar enrolment is free and voluntary. "It must be noted that the existing legal provisions as per the Supreme Court's order and the Aadhaar Act 2016 do not provide for seeding of Aadhaar with any scheme or project.

12.   As per the Terms and Conditions of the Bank too biometric Unique Identification (UID)/Aadhaar number is not mandatory for banking operations because it is admittedly based on "voluntary consent".
It appears that this sort of coercion is being done under some external influence.

Vol. 50, No.17, Oct 29 - Nov 4, 2017