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In the affidavit, which runs upto 46 pages, the Centre has contended that the Aadhaar scheme is in furtherance of the fundamental rights envisaged by the Constitution and not against it.
The Centre has also challenged the locus of the petitioners in instituting the case as a public interest litigation.
Interestingly, the Centre has also listed the requirement of Aadhaar under other statutes like Income Tax Act as a ground for defending use of Aadhaar for social service schemes.
The petition filed by one Shanta Sinha and one Kalyani Sen Menon challenges various provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. They have also challenged various notifications issued by the Central government issued pursuant to the same.
In the petition drawn by advocates Udayaditya Banerjee and Samiksha Godiyal and filed through advocate Vipin Nair, the two petitioners have raised a slew of grounds for arguing violation of Articles 14, 19 and 21.
When the matter had come up for hearing on May 19, the Court had deferred the hearing till June 27 while allowing the Centre time to file a detailed counter affidavit.
Some of the submissions made by Centre in their counter affidavit are as follows:
Matter can be considered only by a 5-judge Constitution bench
“A 3 Judge Bench of this Hon’ble Court in the writ petitions, which had challenged the Aadhaar Scheme i.e. W.P.(C)494 of 2012 & connected cases; vide order dated 11.08.2015, in light of the “apparent unresolved contradiction in the law declared by this Court” had referred the matters to a larger bench to authoritatively decide “the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred….
It is humbly submitted that even when the Union of India had earlier preferred an Application for Modification/ Clarification of certain directions in the Interim Order dated 11.08.2015 in Writ Petition (C) 494 of 2012 and connected cases, this Hon’ble Court was of the view that since the matter had already been referred to a larger bench, only a Constitution Bench could consider the applications for modification by the Union of India and pass suitable orders. It was in these circumstances that the order dated 15th October 2015 came to be passed by a 5-judge bench which was constituted for this reason after the matter was referred to a larger bench on 11th August 2015. Judicial discipline demands that this precedent be followed and the present Applications for interim relief be considered only by a 5 Judge Constitution Bench.”
115.15 crore residents have voluntarily enrolled for Aadhaar, hence no locus standi for petitioners
“It is also pertinent to state that the present writ petition canvassing itself as a Public Interest Litigation is misconceived and lacks representative character. It is humbly submitted that 115.15 Crore residents of India have so far already voluntarily enrolled and allocated Aadhaar number, which is equal to approx. 95.10 % of the entire population. It is therefore submitted that the Petitioners have no locus standi to question the vires of this Scheme, which is intended to benefit almost the entire population of India.”
Benefits won’t be denied even if deadline of June 30 is not met, hence urgent hearing is not required
“As per Section 7 of The Aadhaar (Targeted Delivery Of Financial And Other Subsidies, Benefits And Services)Act, 2016 (hereinafter referred to as the Act of 2016) if a person does not have an Aadhaar number assigned to him or her, they are required to enroll for Aadhaar and until Aadhaar number is assigned they are not being denied benefits, rather alternate and viable means of identity proof is accepted like Voter rD, Ration Card, Passport, Driving License, etc.
The Petitioners have incorrectly claimed in Para 39 and 40 that as per the notifications under Section 7 of the Aadhaar Act 2016, people will’be denied benefits if they do not enrol for Aadhaar by 30th June 2017 and therefore people will suffer hardships in order to justify the urgent hearing of this notifications itself that if people are not able to enroll for case by this Court during vacations.
It is pertinent to note that the notifications though require people to enroll for Aadhaar by 30th June, 2017, it IS provided in the Aadhaar before 30th June due to lack of enrolment facilities in the nearby areas, then they can register their request for Aadhaar enrolment before the appropriate authorities giving their contact .details so that as and when enrolment facilities are set up in the t area, such persons can be enrolled for Aadhaar and for such people benefits will continue to be given through alternate means of identification even if they have not enrolled for Aadhaar before 30th June, 2017. The notifications thus ensure that no genuine person is denied of any benefits because of lack of Aadhaar. Therefore, petitioners’ contentions of urgency in this matter is incorrect and unfounded.”
Aadhaar most widely held identity document
“It is humbly submitted that the Aadhaar card/number IS the most widely held form of identity document with the widest coverage amongst the residents/ citizens.
Therefore, the possibility of exclusion on account of not having Aadhaar is far less than not having any other identity proof. Rather, given that the Aadhaar number/ card is the most widely held identity document, the present petitioner’s prayers would cause serious hardship to such residents, for many of whom it is the only identity proof that they possess or those like the old and infirm who are dependent on the conveniertces which Aadhaar provides like direct benefit transfers etc.
It is also humbly submitted that the right to identity and consequential rights to receive food subsidy, LPG, Kerosene and a host of other benefits and subsidies from the Government by the vast majority of India’s population cannot be impinged upon by a handful of Petitioners whose rights are in no way affected since they may not have even enrolled themselves for the Aadhaar number. This is a classic case where crores of individuals who have enrolled for the Aadhaar number have not complained of violation of any fundamental right, while ‘a handful of individuals who are not aggrieved by the Act are questioning its vires and consequently, the benefits it seeks to make available to the poorer and weaker sections of society.”
Requirements under other laws
Citing Section 139AA of Income Tax Act, Section 12 of National Food Security Act:
“Aadhaar has been adopted by several statutes and authorities across the country both pursuant to directions by this Hon’ble Court as well as legislative amendments passed. by the Parliament of India, this Hon’ble Court ought not to entertain the present applications seeking interim stay of notifications passed, pursuant to the Aadhaar Act 2016, which would stall and interfere with the governance of the country, in the absence of any legal infirmities whatsoever.”
Aadhaar in furtherance of Fundamental Rights and Directive Principles of State Policy
“It is submitted that the right to identity is an inherent part of Article 21 and imperative for a meaningful right to life.”
Aadhaar Act 2016 is an initiative to recognize and further the fundamental right to identity which would provide identification for each resident across the country and would be used primarily as the basis for efficient delivery of welfare schemes. Therefore, when such a measure is taken in furtherance of Article 21, it would be futile to argue that it has no constitutional sanction.
Moreover, Aadhaar is also in furtherance of the Directive Principles of State Policy, namely Articles 38, 39 (b) (c), 46, 47, 51(c) as the use of the Aadhaar number will be helpful to verify that a resident is indeed entitled to and is properly availing of social welfare measures carried out in public interest and also in the interests of the marginalized sections of society who are otherwise deprived of these benefits when they are unable to establish their identities.”
Read the full counter affidavit below.