March 28, 2017 : The matter related to 12-digit biometric Unique Identification (UID)/Aadhaar number was mentioned before the 44th Chief Justice of India Jagdish Singh Khehar headed 3-Judge Bench of Supreme Court on March 27. After hearing the matter the Bench did not pass any order. The Bench comprised of Justice D Y Chandrachud and Justice Sanjay Kishan Kaul. Senior Counsel for the petitioners, Shyam Divan apprised the Court through the earlier orders wherein UID/Aadhaar matter has been judicially determined to be an urgent matter by the 42nd Chief Justice of India, Justice, H.L. Dattu headed 5-Judge Constitution Bench.
The 44th Chief Justice was informed about para 5 of the October 15, 2015 order of the 42nd Chief Justice Constitution Bench because the 3-Judge Bench has never heard the UID/Aadhaar case during September 23, 2013 till date. The next date of hearing is likely to be April 3, 2017.
The Constitution Bench order reads: “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.” Even if the 44th Chief Justice headed 3-Judge Bench had been persuaded to pass or alter the pre-existing order the Bench was not empowered to do so because a 3-Judge Bench cannot overrule or modify a 5-Judge Bench order.
Most of the media has misreported the issues related to UID/Aadhaar like the way they have blundered in reporting about The Finance Bill, 2017 wherein the voice of States and citizens has been silenced through an unprecedented assault on federalism and Constitution. Most of media is failed to comprehend the phenomenon of linguistic corruption wherein voluntary means mandatory and anonymity means transparency while reporting about UID/Aadhaar Number and Finance Bill.
The media failed to report the Court’s direction saying, “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 the Aadhaar Card” and that “The production of an Aadhaar Card will not be condition for obtaining any benefits otherwise due to a citizen” in its order.
The misreporting has been so widespread that the debate in the Rajya Sabha also dealt with the issue of UID/Aadhaar assuming that there Supreme has indeed passed some order today. On March 27, both Sitaram Yechury of CPI (M) and Sukhendu Sekhar Roy of TMC spoke in the Rajya Sabha under the impression that Court has passed some order today on the subject of UID/Aadhaar because of misreporting by the media and both criticized Government’s insistence on UID/Aadhaar. Notably, this not the first time that TMC and CPIM have joined hands to criticize it in supreme public interest.
Both of them together got a unanimous resolution against UID/Aadhaar passed from the West Bengal Assembly seeking compliance with Court’s order. Besides that Satish Chandra Mishra of BSP too endorsed whatever was stated by the TMC MP. Even as Rajya Sabha continues to deliberate on the issue on March 28 and will continue to do so March 29, the misreporting by media about Court’s order has taken its toll.
The fact is that the 3-Judge Bench was not even competent to pass any order which could be inconsistent with Constitution Bench’s order. It remains puzzling as to why concerned lawyers are mentioning the matter before a Bench of inappropriate strength given the fact that as per Court’s order only a Bench of “appropriate strength” i.e. more than 3-Judges is competent to hear it. Shouldn’t the matter be raised before a 5-Judge Bench given the fact that it is the Bench of “appropriate strength” according of Court’s website as of March 27? Is it part of consistent omission on the part of the Supreme Court’s Registry? Or is it an omission on the part of the concerned lawyers?
Given the fact that some 13 cases against UID/Aadhaar has been clubbed together and given the fact that besides this there is a separate case against Aadhaar Act as a Money Bill, the case is likely to be mentioned again in the coming days. It will be appropriate for the credibility of media to refrain from misreporting on such occasions and stop writing about it unless they have read the Court’s order.
Not only did most media outlets mislead the citizens, now the Department of Telecommunications, Ministry of Communications too issued a letter on the subject of “Implementation of Hon’ble Supreme Court orders regarding 100% E-KYC based re-verification of all existing subscribers” wherein it partially refers to Court’s order sated February 6. The Court’s observation in para 5 reads: “In view of the factual position brought to our notice during the course of hearing, we are satisfied, that the prayers made in the writ petition have been substantially dealt with, and an effective process has been evolved to ensure identity verification, as well as, the addresses of all mobile phone subscribers for new subscribers. In the near future, and more particularly, within one year from today, a similar verification will be completed, in the case of existing subscribers.” The Ministry of Communications will have us believe that 2-Judge Bench’s order will prevail over the 5-Judge Constitution Bench’s order.
Notably, the observation of 44th Chief Justice of India headed 3-Judge Bench wherein he reportedly observed that there is no urgency in setting up a Constitution Bench as per the request of 42nd Chief Justice of India headed 5-Judge Constitution Bench comprising of Justice M.Y. Eqbal, Justice C. Nagappan, Justice Arun Mishra and Justice Amitava Roy is not part of any written Court’s order. The latter’s order reads: “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.” Although more than one year three months has passed, the Constitution Bench’s order remains unresponded. This order puts it on record that “This Bench is constituted only for the purpose of deciding the applications filed by the Union of India seeking certain clarification/modification in the orders passed by a Bench of three learned Judges of this Court dated 11.08.2015.”
So far the 44th Chief Justice of India headed Benches of inappropriate strength have not committed the impropriety of questioning Constitution Bench’s order in writing. It is apparent that the hearing by Chief Justice of India Benches of inappropriate strength is contrary to institutional integrity and judicial discipline which was invoked in the order of 3-Judge Bench of Justice Chelameswar, Justice S.A. Bobde and Justice C. Nagappan. Its order reads: “By a reasoned order, the matters are referred to a Bench of appropriate strength.”
In a related development Arun Jaitley moved the Bill in Rajya Sabha to give effect to the financial proposals of the Central Government for the financial year 2017-18, as passed by Lok Sabha to be taken into consideration and also that the Bill be returned. He moved the Bill amidst questioning of violation of Court’s order with regard to UID/Aadhaar.
For Details: Dr Gopal Krishna, Member, Citizens Forum for Civil Liberties (CFCL). CFCL had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. Mb: 9818089660, 08227816731, E-mail: [email protected]
