Aadhar status: Post 2 months of Supreme Court 5 Judges bench Judgment

It has been around two months since a five-judge bench of the Supreme Court determined the fate of the Aadhaar project. The majority judgement did not receive much enthusiasm as it only limited Aadhaar’s use, rather than strike it down entirely. The two aspects that emerged from the judgement were that first, Aadhaar can be made mandatory only for subsidies, benefits or services, and Aadhaar authentication cannot be carried out by private entities.

Aadhaar’s Continued Existence

One of the biggest criticisms of the Aadhaar judgement is that not much notice was taken of the negative consequences of upholding section 7 of the Aadhaar Act. This provision allows Aadhaar to be used for availing subsidies, benefits and services, which citizens are entitled to. The reasoning provided is that it will cut-out ghost beneficiaries and fraud which will result in savings.

However, the petitioners had repeatedly argued against this provision since the technology is not free from issues and hence false negatives can result in exclusion from entitlements. In September 2017, 11-year-old Santoshi Kumari died of hunger in Jharkhand. The reason was due to her family not linking their ration card with Aadhaar, they did not receive the foodgrains they were entitled to. On November 11, 2018, Kaleshwar Soren died of starvation. Once again, the culprit was non-possession of Aadhaar card. He had managed to survive on his neighbours’ charity after his ration card was cancelled in 2016.

The Economic Times reported today that Aadhaar enrolments, as well as authentications, had fallen drastically. However, this does not reveal much information about Aadhaar’s continued use. First, the drop in enrolment could be explained as many people in the country have already been coerced into getting an Aadhaar card before the Supreme Court decided on the matter. On the other side, the drop in authentication requests can also be one explanation as the use of Aadhaar for authentication has been made optional, hence rather than having to play with biometrics, people may prefer to submit or use other documents.

Following the Supreme Court’s judgement, the Unique Identification Authority of India (UIDAI) has issued two press releases in connection to it. The first press release welcomed the Supreme Court’s decision to uphold Aadhaar’s constitutional validity, the other concerned the electronic-Know Your Customer (e-KYC) norms. In the second press release, the UIDAI along with the Department of Telecommunications (DoT) stated that SIM cards linked with Aadhaar would not be deleted, as some rumours suggested. The release also mentioned that one could de-link one’s Aadhaar card by submitting a request for de-linking accompanied by an alternative identity document for fulfilling the e-KYC requirements.

However, Aadhaar continues to be of value to banks and telecommunications operators since no opt-out procedure has been devised till date. In a letter to the National Payments Corporation of India (NPCI) on November 19, the State Bank of India (SBI), in the light of the Aadhaar judgement, had decided to suspend the Aadhaar enabled Payment System (AePS). However, the UIDAI – the agency overseeing Aadhaar and its implementation – on November 30, informed the banks through a circular to the Reserve Bank of India (RBI), that since it is not possible to distinguish between authentication requests for the purposes listed under section 7, suspending the AePS would have an adverse impact. This circular would certainly be music to the ears of those operating the AePS, Bhim App as well as Aadhaar Pay, not to mention the numerous other corporate beneficiaries of Aadhaar.

Protecting the Financial Technology Companies

Barely a day after the Supreme Court had delivered its decision, the Union Finance Minister, Arun Jaitley, and the Union Minister for Electronics and Information Technology as well as Law and Justice, Ravishankar Prasad, said that the Supreme Court’s reading down of section 57 related only to contracts. In this regard, the Ministers are correct. But this is the letter, not the spirit of the Supreme Court’s decision.

Section 57 states that: “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect:

Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI.”

Due to the blank cheque nature of this provision wherein Aadhaar can be used for ‘any purpose’ and by ‘the State or any body corporate or person’, the Supreme Court held:

“We read down this provision to mean that such a purpose has to be backed by law. Further, whenever any such “law” is made, it would be subject to judicial scrutiny. (b) Such purpose is not limited pursuant to any law alone but can be done pursuant to ‘any contract to this effect’ as well. This is clearly impermissible as a contractual provision is not backed by a law and, therefore, first requirement of proportionality test is not met. (c) Apart from authorising the State, even ‘any body corporate or person’ is authorised to avail authentication services which can be on the basis of purported agreement between an individual and such body corporate or person. Even if we presume that legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and demographic information by the private entities. Thus, this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional.”

However, there appears to be a loophole in this part of the Supreme Court’s decision, i.e. that the use of Aadhar has to be backed by a law. Under clause 3 of Article 13 of the Constitution, law is defined as including; “any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law”. Therefore, a departmental notification requiring the use of Aadhaar for any purpose would still not fall foul of the Supreme Court’s decision on section 57. The only saving grace is that the law is subject to judicial review, hence any formal iteration making Aadhaar mandatory can be challenged before the Courts. However, this depends on whether the general public is vigilant enough.

The actions of the UIDAI, as well as statements from the government regarding section 57, appear to be geared towards ensuring the continued existence of fintech companies. While the ongoing Assembly elections along with the rhetoric around the Ram Mandir and the Citizenship Bill grab people’s attention, the Monsoon Session of Parliament could see the passage of a Bill to enable Aadhaar’s use for digital payments. It is not necessary to state who the true beneficiaries of such a law would be.

departmental as well as criminal proceedings against government servants to be conducted simultaneously

The departmental and criminal proceedings against the erring Government servants will now be conducted simultaneously and necessary instructions in this regard have been passed to all the Administrative Secretaries for prompt and strict compliance.
The Supreme Court in its judgement in case titled “State of Rajasthan Versus BK Meena and Others” dated September 27, 1996 had made it clear that the approach and the objective in the criminal proceedings and the disciplinary proceedings are altogether distinct and different.
Moreover, the Apex Court in its judgment delivered in a case titled “State Bank of India and Others Versus Neelam Nag” on September 16, 2016 had mentioned that there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously.
However, despite these explicit judgments of the highest court of the country, there was lack of clarity in Jammu and Kashmir regarding initiation of departmental proceedings in cases where criminal proceedings have either been sanctioned or the proceedings in the criminal case have been stayed by a higher forum. Due to this, the authorities were preferring to await conclusion of the criminal proceedings before initiating departmental proceedings.
Recently, on the directions of the Chief Secretary BVR Subrahmanyam, the plethora of judgments of the Apex Court were minutely examined by a group of senior officers in consultation with the Department of Law, Justice and Parliamentary Affairs and finally the issue regarding conduct of departmental enquiry in general cases and in particular where prosecution stands sanctioned has been settled.
“The matter has been commented upon by the Apex Court in plethora of judicial pronouncements and the Apex Court has held that there is no legal bar in simultaneous conduct of departmental proceedings along with the criminal proceedings”, the Commissioner Secretary to Government, General Administration Department Hilal Ahmad said in a circular issued today.
“It is a settled legal position that the criminal proceedings and the departmental proceedings can be held simultaneously except in the cases where the court has specifically restrained the Government from undertaking departmental proceedings”, the circular said.
Accordingly, the General Administration Department has directed all the departments to initiate departmental proceedings in all such criminal cases where the criminal proceedings have been initiated and the alleged criminal act amounts to misconduct and attracts the provisions of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956.
“The departments should accordingly take recourse and strictly adhere to the Rules of 1956 wherever departmental enquiry in such cases has to be initiated”, the circular said.
It is pertinent to mention here that in its judgment in the case titled “State of Rajasthan Versus BK Meena and Others”, the Apex Court had held: “In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment whereas in the criminal proceedings the question is whether offences registered against him under the Prevention of Corruption Act are established and if established what sentence should be imposed upon him”.
“The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings should not be matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration with the criminal case gets unduly delayed”, the judgment further reads.
Similarly, the Supreme Court judgment in the case titled “State Bank of India and Others Versus Neelam Nag” read: “Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of the disciplinary proceedings may be advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal court”.
“Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of the law. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large. The court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. Moreover, an early conclusion of the disciplinary proceeding has itself been seen to be in the interest of the employees”.

NCLAT: NCLT Cannot Decide Legality Of A Foreign Decree

The NCLAT has once again held that the NCLT, for the purpose of initiating insolvency, has no jurisdiction to decide whether a foreign decree is legal or illegal.

The judgment is in response to an appeal filed against the Principal Bench order which got into the merits of a foreign decree, in the case of Usha Holdings LLC vs. Francorp Advisors. The Principal Bench found that the foreign decree did not satisfy the requirements of Section13 and 44A of the Civil Procedure Code, and hence the debt was not enforceable.

The NCLAT, however, disagreed and held that NCLT has no authority to decide the legality of a foreign decree. While doing so, it relied on the NCLAT judgment in the case of Binani, and recorded that,

“we hold that the Adjudicating Authority not being a Court or ‘Tribunal’ and ‘Insolvency Resolution Process’ not being a litigation, it has no jurisdiction to decide whether a foreign decree is legal or illegal.”

The reliance on the Binani judgment may be misplaced. The text of the judgment (or at least the portion quoted) does not make any reference to or is in any way related to the power of the NCLT with respect to enforcement of foreign decrees.

However, a previous judgment of the NCLAT provides better reasoning as to why NCLT is not the competent court to decide on validity of a decree, in insolvency proceedings. In the case of V.R. Hemantraj vs. Stanbic Bank Ghana Ltd, the NCLAT found that an application under Section 7, 9 or 10 is not a recovery proceeding, or proceeding for determination of claim on merit.

It further held that the NCLT is not required to write a detailed decision as to which are the evidence relied upon for its satisfaction. The NCLT is only required to be satisfied that there is a ‘debt’ and default has occurred.

Both judgments make reference to the term ‘Adjudicating Authority’  and not ‘NCLT’, because the NCLT has the powers of a Civil Court under provisions of the Companies Act, but the Adjudicating Authority under the IBC does not.

Supreme Court historic Judgments of 2018

1.            Sabarimala open to women after 27 years

Considered one of the holiest Hindu temples in the country, Sabarimala is located at the Periyar Tiger Reserve in Kerala. For the last 27 years, the temple has not been open to menstruating women (between the ages of 10 and 50). On September 28, the Supreme Court lifted this ban imposed by the Kerala High Court. The five-judge bench led by former Chief Justice Dipak Misra said,

“The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and the degradation of their status.”

2.            Husband no longer wife’s master; adultery not a crime

Just a day before the Sabarimala verdict, the apex court struck down the colonial-era law of adultery. Section 497 of the Indian Penal Code stated that a woman could be punished for adultery, as could a man who has consensual sexual intercourse with another man's wife without his consent.

The apex court declared the law unconstitutional as it treated the husband as the master of his wife.

Chief Justice Dipak Misra read, "Any provision of law affecting individual dignity and equality of women invites the wrath of the constitution. Legal sovereignty of one sex over other sex is wrong."

3.            Link your Aadhaar? No more.

On September 26, a five-judge bench of the Supreme Court scrapped Section 77 of the Aadhaar Act. After 31 petitions challenged the validity of Aadhaar and said that it violated a citizen’s privacy, the court declared that while Aadhaar was constitutional it was, however, unconstitutional to make it mandatory for availing government services.

The verdict barred several private entities from asking customers to verify themselves using Aadhaar to avail their services.

4.            See court proceedings live

On September 26, a bench led by CJI Dipak Misra stated, “sunlight is the best disinfectant”, and said that all future proceedings of national and constitutional importance will be streamed live.

But, to ensure protection and privacy, it also added that cases related to matrimonial and where a child is involved like Protection of Children from Sexual Offences cases will be excluded.

5.            No more 377 - Same-sex love is not a crime

CJI Dipak Misra also led the bench that scrapped Section 377. The bench stated it to be ‘irrational, indefensible and manifestly arbitrary'.

The historic ruling stated,

“The natural identity of an individual should be treated to be essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person must be respected and not despised or looked down upon.”

6.            ‘Love Jihad’

In 2016, Hindu woman Hadiya Jahan converted to Islam and married Shafin Jahan, sparking a controversy when her father claimed that her daughter was brainwashed by extremist groups.

The issue escalated to Kerala High Court on January 19, 2016, that declared the marriage to be “only a sham”, and “a charade to force the hands of the court”. Hadiya’s custody was given to her father as the HC stated that she was incapable of taking her own decisions. But, things changed this year.

On March 8 this year, the case was heard by the Supreme Court and the final judgment came in Hadiya’s favour as the bench concluded that it was her choice to choose to live with whoever she wishes to.

7.            The fundamental right to die

On March 9, a five-judge bench led by CJI Dipak Mishra held the right to life includes the right to die with dignity. The apex court decided passive euthanasia should be allowed for withdrawal of life support for terminally ill patients or patients in a permanent vegetative state.

In doing so, the court ensured that an individual’s right to die with dignity is more important than the state’s interest in ‘preserving the sanctity of life’.