If the Parliament passes a money bill that allows Government to “Rape, Loot and Murder Indians”, will you wait for Supreme Court to wake up from its sleep or will you protest and act in self defense: Praveen Dalal.
This legal analysis is subject to the following two caveats:
(1) We are not giving all the legal reasons and Constitutional position regarding Constitutionality of Aadhaar, Aadhaar Act, 2016, Section 139AA of Income Tax Act, etc at this stage and would come up with the same at a latter stage after getting official response of Indian Government.
(2) We are also not discussing the Per Incuriam aspect of the majority judgment of Supreme Court that we would discuss at appropriate stage.
As per the majority judgment of Constitution Bench of Supreme Court on Aadhaar And Aadhaar Act, 2016, no person can be deprived of any DBT/Subsidy/Welfare Services even if he/she has failed to do a successful Aadhaar authentication.
So Aadhaar may be asked for availing Subsidy/Welfare Services but it is no more mandatory absolutely and Government cannot deny any DBT, Subsidy or Welfare Services in the absence of an authentication by Aadhaar.
As a natural corollary, if the Government has failed to ensure successful online Aadhaar authentication for Subsidies/Welfare Services, it cannot demand Aadhaar for these purposes in any other form, including paper form (photocopy), QR Code, paperless offline KYC, mobile OTP or any other digital or non digital form of Aadhaar.
Also private companies, individuals, startups, fintech, entrepreneurs, etc have been specifically barred from using Aadhaar in any form whatsoever as mentioned above. Supreme Court has held that use of Aadhaar by such private companies, etc is unconstitutional. Even a law by Parliament cannot cure this unconstitutionality.
Aadhaar and Aadhaar Act, 2016 have already been challenged before the Supreme Court of India. It is obvious that if the legality and constitutionality of Aadhaar and Aadhaar Act would be adjudicated upon by Supreme Court, there would be no option but to scrap them by Supreme Court opines Praveen Dalal. So there are very strong reasons for Supreme Court to delay the matters and give cryptic and ambiguous judgments and orders from time to time.
One such interim order (pdf) was given by Supreme Court on 13-03-2018 that is clearly per incuriam as it violates Part III of Indian Constitution dealing with Fundamental Rights. Mere fact that the interim order is per inucriam is enough to discard it completely but we would discuss few more legal aspects about the approach and interim orders of Supreme Court.
Firstly, Aadhaar is an unconstitutional project as it violates almost entire Part III of Indian Constitution dealing with Fundamental Rights of Indians. In short, Parliament, Executive and Judiciary cannot violated Fundamental Rights of Indians, whether by direct or indirect methods. That would be hit by Doctrine of Basic Structure which is binding on Supreme Court as well. Parliament, Executive And Judiciary cannot force Indians to enroll and quote Aadhaar in any manner and for any purpose whatsoever opines Praveen Dalal. So any direction by Supreme Court mandating Aadhaar, whether directly or indirectly, is per incuriam, unconstitutional and non binding says Praveen Dalal.
Secondly, Aadhaar Act, 2016 is unconstitutional and void ab initio and is of no legal significance. Judicial wisdom and integrity was totally shattered when Supreme Court ignored the clear fact that Aadhaar Act, 2016 is neither a “Validation Act” nor a “Money Bill” opines Praveen Dalal. Supreme Court also violated the interim order of previous Constitution Bench of Supreme Court by not adhering to it and giving a self contradictory view on Aadhaar. Meanwhile, some division benches of Supreme Court even gave Per Incuriam judgments even though Interim order of Constitution Bench was still in force informs Praveen Dalal. In short, Supreme Court only indulged in “Self Mockery and Degradation” in order to accommodate “Unconstitutional Interests” of Executive says Praveen Dalal.
So any compliance with Aadhaar Act, 2016 in general and any section like Section 7 in particular is not a legal obligation on part of any Indian. Indians can obtain DBT, subsidies or any other benefits arising out of or under the Consolidated Fund of India (CFI) without Aadhaar by showing any other government identification opines Praveen Dalal. No Indian is bound to follow the sadistic injustice of Supreme Court regarding Aadhaar or Aadhaar Act. Indian have the Fundamental Rights to claim and Indian government has the Fundamental Duties to provide social and welfare service. Government or Supreme Court cannot introduce unconstitutional and Orwellian Aadhaar in this equation as it has no place in our Constitutional scheme opines Praveen Dalal.
Thirdly, even if we analyse the unconstitutional Aadhaar Act and unconstitutional Section 7 of the same, it is clear that there is no compulsion to have Aadhaar to avail DBT, subsidies or services attributed to Consolidated Fund of India. Proviso to Section 7 of the Aadhaar Act clearly provides that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service. Just use any other government ID and government cannot deny you your rations, subsidies, scholarships, etc opines Praveen Dalal.
Finally, media is wrongly reporting the interpretation of interim order of Supreme Court. The Supreme Court has just said that the benefits, subsidies and services covered under Section 7 of the Aadhaar Act, 2016 should remain undisturbed. And to avail the benefits, subsidies and services under 7 of the Aadhaar Act, one can use alternative IDs. Nowhere, the Supreme Court has said that Aadhaar is mandatory for availing services under Section 7 of the Aadhaar Act informs Praveen Dalal.
Supreme Court has just given another cryptic and ambiguous interim order that government is interpreting for its own benefits. The bottom line is that Aadhaar is unconstitutional and is absolutely optional for all purposes and this includes DBT, subsidies and services falling under Section 7 of the Aadhaar Act opines Praveen Dalal.
Now you have the correct legal interpretation of the interim order of Supreme Court given on 13-03-2018 use it to ensure “Social Justice” for all, especially the needy and poor ones.