Heated exchanges were witnessed in Court No 6 of the Supreme Court between 2 and 4 pm in the hearing of the case of Nagrik chetna manch vs UOI. The attorney general, Mukul Rohatgi, who argued in favour of modification of the court’s 11 August order clashed with SA Shyam Divan, who represented the petitioners in the main case, and opposed the modification plea.

Their arguments and responses to each other revealed serious cleavages which appeared to be unbridgeable.

Justices J Chelameswar, SA Bobde and C Nagappan, who comprise the bench, are expected to deliver their order tomorrow, but it is most likely they may refrain from deciding the serious contentions. The main points of contention are as follows:

If court could open its gates to Yakub at 2 am, can it shut its doors to Aadhaar beneficiaries?

In its 11 August order, the bench restricted the use of Aadhaar card or UIN by the respondents UOI and others only in PDS and LPG schemes, and had clearly barred the use of information in others. The AG and other counsel representing SEBI, Pension Fund Regulatory Authority, TRAI, State of Gujarat and others argued that because of this restriction, many potential beneficiaries have been deprived of their right to enjoy the benefit.

The AG referred to the new scheme of bank correspondents who reach many villages with the Aadhaar machine, to open accounts, credit amounts due to the account holders, take their deposits etc.

In the absence of Aadhaar, these account holders have to commute distances, and waste their time and limited resources in accessing the benefits, he said. Similarly, the pensioners, who have to report every November that they are alive, need not visit their banks for the purpose, but could do so from their homes, by asking the bank representative to visit with their Aadhaar machines. He, therefore, appealed to the bench to relax its conditions in its 11 August order.

He said 92 crore people have been enrolled under Aadhaar with their consent. Calling this consent as not informed - as the petitioners allege - is not fair, as the population of this country is not so foolish, the AG said.

The AG was sure that Aadhaar helped to eliminate ghost beneficiaries, as fingerprints cannot be duplicated, and therefore, it resulted in greater savings.

“Data is not to be shared, even if shared, so what,” was his refrain.

Taking the analogy of the Supreme Court opening its gates at 2am recently for the sake of a single individual (Yakub Memon who was hanged on August 30), he asked whether is it fair to shut the doors of the Supreme Court to countless beneficiaries of the Aadhaar scheme only on the ground that the a Constitution Bench is yet to be constituted to decide whether right to privacy is a fundamental right.

As the Aadhaar project is only voluntary, he appealed to the bench to relax its conditions, so as to include all other services, on voluntary basis.

What use fundamental right, if citizens cannot access welfare benefits, asks SA KK Venugopal?

The most powerful argument was that of senior advocates KK Venugopal, who brought to the attention of the bench that the Supreme Court itself is guilty of contempt of non-compliance with the bench’s 11 August order, by making the UIN mandatory for PIL petitioners. He referred to Order 38 of the Supreme Court Rules (p 42 of the link), which clearly says under Rule 12 (2)(i)(a) that a PIL petitioner shall disclose his full name, complete postal address, e-mail address, phone number, proof regarding personal identification, occupation and annual income, PAN number and National Unique Identity Card number, if any.

Venugopal said even if privacy is a fundamental right, the Aadhaar beneficiaries would not mind waiving it for the sake of accessing the welfare benefit, and the court could not tell the beneficiary that he or she could not have given informed consent for enrolling under Aadhaar, and therefore, was not entitled to access the benefit. The court is actually telling the beneficiary, that it insists that he or she retain the right to privacy, when they don’t want it, he said.

Shyam Divan’s contentions:

The applicants for modification are guilty of contempt. The court should not even issue notice, as the UOI did not give any publicity to the bench’s order that Aadhaar is not mandatory, and that the respondents should publicise it.

This was hotly contested by the AG who submitted proof of publicity. Shyam Divan, however, said the publicity being highlighted by the AG is about Aadhaar, and not about its voluntariness.

The entire set of cases have been referred to the Constitution Bench, and not just one aspect. Therefore, the grievance of the applicants for modification should also be referred to the CB, as nothing is pending with reference to the main matter.

Appropriate course for this bench is to send this application for modification of 11 August order to the CB

There has been no change in the circumstances after 11 August. The AG and other parties were heard at length.

Foreign companies given access to data. They have control over those who have been enrolled. They don’t have the right or authority to collect one’s fingerprint.

The petitioners need time to respond to the slew of affidavits for modification of 11 August order

Those who have been enrolled under Aadhaar have been enrolled on the basis of one or the other of 18 listed documents. Therefore, their right to access the benefits need not be denied, simply because the Aadhaar card cannot be used.

Contentions of Meenakshi Arora

With fevicol, somebody’s fingerprints can be duplicated, it has been demonstrated, said Arora.

Therefore, the claim that it would stop leakages in the benefit schemes is not credible.

What the government says is ‘it is my way or high way’; If you don’t want to enrol under Aadhaar, you have to suffer by commuting long distances to access your benefits.