Aadhaar

Case BriefsLegal RoundUpSupreme Court (Constitution Benches)Supreme Court Roundups

Unlike the year 2020, the Supreme Court Constitution Bench has functioned limitedly in the year 2021, with the number of judgments delivered by the Constitution Bench being three.

As we bid adieu to the year 2021, here is a brief recap of all the developments advanced by the Constitution Bench of Supreme Court:

No more “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial; Magistrates “must” record reasons

5-Judge Bench:  SA Bobde, CJ and L. Nageswara Rao, BR Gavai, AS Bopanna and S. Ravindra Bhat, JJ

Noticing that the summary trials of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 are being routinely converted to summons trials in a “mechanical manner”, the Constitution bench has directed the High Courts to issue practice directions to the Magistrates for recording cogent and sufficient reasons while doing so.

The Court explained that in a case tried summarily in which the accused does not plead guilty, it is sufficient for the Magistrate to record the substance of the evidence and deliver a judgment, containing a brief statement of reasons for his findings. There is a restriction that the procedure for summary trials is not to be applied for any sentence of imprisonment exceeding three months. However, Sections 262 to 265 of the Code were made applicable “as far as may be” for trial of an offence under Chapter XVII of the Act, notwithstanding anything contained in the Code.

    “It is only in a case where the Magistrate is of the opinion that it may be necessary to sentence the accused for a term exceeding one year that the complaint shall be tried as a summons trial.”

Read more…

[In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881, 2021 SCC OnLine SC 325]


Maratha Reservation unconstitutional | The timeline of the case and the 3 questions that received unanimous opinions of all 5 judges

5-judge Bench: Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ

In a big development, the 5-judge bench has quashed the much in debate Maratha Reservation and has held that the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney[1]’s case.

Read more…

[Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1]

Adhaar | When 4:1 majority refused to review the Adhaar-5 Judges verdict but Justice Chandrachud dissented

5-judge Bench: A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ

In spite of going through several rounds of litigation and long hours consideration, the Adhaar Controversy had once again popped up before the Supreme Court. The Constitution Bench addressed the review petition against the final verdict in K.S.  Puttaswamy (Aadhaar-5 Judges) v Union of India, (2019) 1 SCC 1. Among the issues which arose for decision, the Court had to answer two critical questions:

  • Whether the decision of the Speaker of the House of People under Article 110(3) of the Constitution, to certify a bill as a ‘Money Bill’ under Article 110(1) is final and binding, or can be subject to judicial review; and
  • If the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 had been correctly certified as a ‘Money Bill’ under Article 110(1) of the Constitution?

Read more…

[Beghar Foundation v. K.S. Puttaswamy, (2021) 3 SCC 1 ]

Kamini Sharma, Editorial Assistant has put this report together 

Legislation UpdatesStatutes/Bills/Ordinances

The Lok Sabha has passed the Election Laws (Amendment) Bill, 2021 on December 20, 2021 which seeks to link electoral rolls with Aadhar number. The Bill was passed through a voice note. The Bill makes amendments to the Representation of the People Act, 1950

Key provisions under the Bill are:

  • The electoral registration officer may require a person to furnish the Aadhaar number given by the UIDAI as per the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 for verification of their identity.
  • The electoral registration officer may also require the Aadhaar number from persons already included in the electoral roll for the purposes of authentication of entries in electoral roll and to identify registration of name of the same person in the electoral roll of more than one constituency or more than once in the same constituency.
  • Every person whose name is included in the electoral roll may intimate his Aadhaar number to such authority in such form and manner as notified by the Central Government in the Official Gazette.
  • No application for inclusion of name in the electoral roll shall be denied and no entries in the electoral roll shall be deleted for inability of an individual to furnish or intimate Aadhaar number due to such sufficient cause as may be prescribed: Provided that such individual may be allowed to furnish such other alternate documents as may be prescribed.

Tanvi Singh, Editorial Assistant has reported this brief.

Legislation UpdatesRules & Regulations

Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020

Centre in consultation with UIDAI makes the above stated Rules.

Purposes for Aadhaar authentication

(1) The Central Government may allow Aadhaar authentication by requesting entities in the interest of good governance, preventing leakage of public funds, promoting ease of living of residents and enabling better access to services for them, for the following purposes, namely:–

(a) usage of digital platforms to ensure good governance;

(b) prevention of dissipation of social welfare benefits; and

(c) enablement of innovation and the spread of knowledge.

(2) Aadhaar authentication under sub-rule (1) shall be on a voluntary basis.

Preparation of proposal

The Ministry or the Department of the Government of India or the State Government, as the case may be, desirous of utilising Aadhaar authentication for a purpose specified in Rule 3 shall prepare a proposal with justification in regard to such purpose for which Aadhaar authentication is sought and submit the same to the Central Government for making a reference to the Authority.

Examination of proposal

On receipt of the proposal under Rule 4, if the Authority is satisfied that the proposal is in accordance with the purposes mentioned in Rule 3 and the provisions of the Act, it shall inform the Central Government that the requesting entity may be allowed to perform Aadhaar authentication and thereafter, the Ministry or the Department of the Government of India or the State Government, as the case may be, may be authorised by the Central Government to notify the same accordingly.

Read the Rules here: NOTIFICATION

Ministry of Electronics and Information Technology

Notification dt. 05-08-2020

Hot Off The PressNews

Supreme Court: A bench headed by SA Bobde, CJ has granted four weeks time to states and Union Territories to respond on a plea alleging death by starvation of persons due to denial of ration over problems in Aadhaar linkage with ration cards. The Court noted that most of the States and Union Territories have not filed their response on the plea and asked them to submit their response. The court was informed that only Jharkhand, Nagaland, and Tamil Nadu have filed the reply in the case.

Senior advocate Colin Gonsalves, appearing for the petitioner, contended that Aadhaar linkage has resulted in 2.33 crore cancellation of ration cards between the years 2013 and 2016. Earlier, the Court had sought a response from the States on whether a person being denied rations over Aadhaar linkage.

Prime Minister Narendra Modi had made a statement that 3 crores cards have been cancelled, Gonsalves argued, adding that 85 per cent cards were wrongly cancelled according to a recent survey. The petition was filed on behalf of the mother Koili Devi and sister Gudiya Devi of Santoshi, an 11-year-old girl from Simdega, Karimati in Jharkhand who died of starvation on September 28, 2017.

The petition highlighted that Santoshi’s death was due to the cancellation of her poor Dalit family’s ration card since it had not been linked to their Aadhaar card. Their rations had been stopped from March 2017, because of which, the entire family had been starving. On the day of Santoshi’s death, her mother served her some tea and salt – the only two things they had left. Later that night, Santoshi died, the plea said. Gonsalves has contended that in many states, the “notification is there but when tribals go to the centres there is no ration.”

(Source: ANI)

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Manoj Misra and Virendra Kumar Srivastava, JJ. clarified that no protection shall be given and the investigating agency shall be free to take all steps to bring the investigation to its logical conclusion if the victim is not produced by the date fixed.

This instant petition was sought for the quashing of the FIR registered under Sections 363, 366, 506 IPC. The allegation entailed in the FIR is that the victim (Petitioner 5), a sixteen-year-old girl was enticed away by the accused person.

Counsel for the Petitioner, Ram Sajivan submitted that the girl is an adult and that she had voluntarily married Kishan Kumar (Petitioner 1). Reliance was placed on the Aadhaar Card of petitioner 5 to prove the age. The date of birth as per Aadhaar is 01.01.2000.

Government Advocate for the Respondent submitted that the date of birth as per Aadhar Card has not been conferred any conclusive status by law and, therefore, it would be appropriate that this petition be disposed of by requiring the investigating agency to determine the age of the Petitioner 5 and record her statement and, thereafter, take appropriate action as per law.

After analyzing the submissions of the parties, the Court observed that there is no satisfactory documentary evidence to hold the victim to be an adult. The Court also provided certain directions to petitioner 1, that he shall produce petitioner 5 before the court of Chief Judicial Magistrate, Farrukhabad to ascertain whether any force has been used on her or she has been voluntarily in the company of the petitioner 1. In case the victim deposes before the Chief Judicial Magistrate that force has been used on her, the Chief Judicial Magistrate shall proceed to pass appropriate orders immediately in respect of the custody/protection of the victim. However, in case the victim deposes that she has been voluntarily in the company of the petitioner 1 or any other person and that no force has been used on her, CJM shall call upon the Investigating Officer of the case and fix a date for appearance of the informant or the parents or natural guardian of the victim for the purpose of determining the age of the victim. Though in the event the victim is found to be a minor, the police would be free to take the investigation to its logical conclusion and may affect the arrest of the accused. [Kishan Kumar v. State of U.P., 2019 SCC OnLine All 4337, decided on 22-11-2019]

Legislation UpdatesRules & Regulations

G.S.R. 840(E).—In exercise of the powers conferred by Section 73, read with Section 11A and Section 12AA of the Prevention of Money-laundering Act, 2002 (15 of 2003), the Central Government hereby makes the following rules further to amend the Prevention of Money-laundering (Maintenance of Records) Rules, 2005, namely:—

1. (1) These rules may be called the Prevention of Money-laundering (Maintenance of Records) Fifth Amendment Rules, 2019.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Prevention of Money-laundering (Maintenance of Records) Rules, 2005, in rule 9, after sub-rule (18), following sub-rule shall be inserted namely:–

“(19) Where a client has provided his Aadhaar number for identification under clause (a) of sub-rule (4) and wants to provide a current address, different from the address as per the identity information available in the Central Identities Data Repository, he may give a self-declaration to that effect to the reporting entity.”.

Ministry of Finance

[Notification dt. 13-11-2019]

Legislation UpdatesNotifications

Ministry of Finance has extended the deadline for linking of the PAN-Aadhaar from 30-09-2019 to 31-12-2019.

Official Notification states as follows:

In exercise of the powers conferred under sub-section (2) of Section 139AA of the Income-tax Act, 1961 (‘Act’) (43 of 1961), the Central Government hereby amends the notification of the Ministry of Finance (Department of Revenue) dated 31st March 2019, published in the Gazette of India, Extraordinary, Part-II, Section 3, sub-section (ii) vide S.O. number 149S(E) dated: 01-04-2019.

2. In the said notification : –

(i) in paragraph 1, 30th September, 2019 shall be substituted by 31 st December 2019;

(ii) in paragraph 3, 30.09.2019 shall be substituted by 31st December 2019.

Ministry of Finance

[Notification dt. 28-09-2019]

Legislation UpdatesRules & Regulations

No. 13012/79/2017/Legal-UIDAI(13)/Vol.II (No. 3 of 2019).—In exercise of the powers conferred by sub-section (1) and sub-clause (b), (e), (j), (v) and (x) of sub-section (2) of Section 54 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Unique Identification Authority of India hereby makes the following regulations to further amend the Aadhaar (Enrolment and Update) Regulations, 2016 (No. 2 of 2016), namely:—

1. Short title and commencement.—

(1) These Regulations may be called the Aadhaar (Enrolment and Update) (Seventh Amendment) Regulations, 2019 (No. 3 of 2019).

(2) These shall come into force from the date of their publication in the Official Gazette.

2. Amendment to Schedule II [referred in Regulation 10(2)] of the Aadhaar (Enrolment and Update) Regulations, 2016.

(I) In Schedule II, in List A (Proof of Identity) documents at Sl. Nos. 19 to 31, in List B (Proof of Address) documents at Sl. Nos. 34 to 44, in List C (Proof of Relationship) documents at Sl. Nos. 10 to 14 and in List D (Date of Birth) documents at Sl. Nos. 5 to 14 shall be inserted. This shall have an overriding effect to earlier amendments in Schedule-II.

*To get detailed information regard to the amendment of Schedule-II, please follow the link: NOTIFICATION

Unique Identification Authority of India 

[Notification dt. 05-09-2019]

Hot Off The PressNews

Supreme Court: While hearing Facebook Inc’s petition asking Supreme Court to hear all cases related to demands for linking Aadhaar to social media accounts and tracing the source of WhatsApp messages, the Court said that there has to be a balance between privacy and how to govern. The court, hence, issued notice to Facebook, Twitter, Google, YouTube, the centre and Tamil Nadu asking for their response by September 13 on whether the petitions should be transferred from high courts across India to the Supreme Court. Various cases are being heard by the high courts of Madras, Bombay and Madhya Pradesh and Orissa.

The Court said,

“There is a conflict between privacy and how the government should run the country when crimes are committed. There has to be a balance… under what condition information can be given and to whom,”

Facebook and WhatsApp, asking that all petitions be transferred to the top court, said it was a matter of high magnitude and affected the privacy of the entire nation.

On Monday, the Tamil Nadu government had told the Supreme Court that social media profiles of users need to be linked with Aadhaar numbers to check the circulation of fake, defamatory and pornographic content as also anti-national and terror material. However, Facebook Inc resisted the state’s suggestion on grounds that the sharing of the 12-digit Aadhaar number, the biometric unique identity, would violate privacy policy of users.

Facebook Inc said it cannot share the Aadhaar number with a third party as the content on its instant messaging WhatsApp was end-to-end encrypted and no one can access it.

The Tamil Nadu government, which is deep into a case related to the deadly Blue Whale game, argued that the centre was struggling to find out who the creator of the game was and who gives directions. Attorney General KK Venugopal, representing Tamil Nadu, said,

“Someone says he is a young person from Russia. A number of people have died in India playing the Blue Whale. Let the Madras High Court continue with its hearing,”

The Supreme Court said,

“We are aware of Blue Whale. What is happening in dark web is worse than Blue Whale. The idea of the Madras High court expanding the issue was that if need be, shouldn’t the intermediary inform the police about details of person for crime detection? We are not examining the merits of the case, only dealing with the transfer of the cases to the Supreme Court.”

(Source: NDTV)

Legislation UpdatesNotifications

S.O. 2903(E).—Whereas, the use of Aadhaar as identity document for delivery of services or benefits or subsidies simplifies the Government delivery processes, brings in transparency and efficiency, and enables beneficiaries to get their entitlements directly in a convenient and seamless manner and Aadhaar obviates the need for producing multiple documents to prove one’s identity;

And whereas, the Ministry of Electronics and Information Technology (hereinafter referred to as the Ministry) in the Government of India is administering the Fee Reimbursement to Scheduled Castes and Scheduled Tribes under Manpower Development Scheme (hereinafter referred to as the Scheme), implemented through National Institute of Electronics and Information Technology (hereinafter referred to as the Implementing Agency) under Ministry of Electronics and Information Technology;

And whereas, under the aforesaid Scheme, financial assistance is given to the Implementing Agency to provide free of cost training (hereinafter referred to as the benefit) to the candidates belonging to the Scheduled Castes and the Scheduled Tribes (hereinafter referred to as the beneficiaries), who meet the criteria as defined in the extant Scheme guidelines, on the National Skills Qualifications Framework complied courses for the employability, entrepreneurship creation and to initiate and promote activities in Information and Communications Technology across the country;

And whereas, the aforesaid Scheme involves recurring expenditure incurred from the Consolidated Fund of India;

Now, therefore, in pursuance of the provisions of section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016) (hereinafter referred to as the said Act), the Central Government hereby notifies the following, namely:-

1. (1) Every beneficiary eligible for receiving the benefit under the Scheme shall be required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication.

(2) Every beneficiary desirous of availing the benefit under the Scheme, who does not possess the Aadhaar number or has not yet enrolled for Aadhaar shall have to apply for Aadhaar enrolment within thirty days of the commencement of the training, provided he or she is entitled to obtain Aadhaar as per the provisions of section 3 of the said Act and such persons may visit any Aadhaar enrolment centre (list available at Unique Identification Authority of India (UIDAI) website www.uidai.gov.in) for Aadhaar enrolment.

(3) As per regulation 12 of the Aadhaar (Enrolment and Update) Regulations, 2016, the Ministry through its Implementing Agency, is required to offer Aadhaar enrolment facilities for the beneficiaries who are not yet enrolled for Aadhaar, and in case there is no Aadhaar enrolment centre located in the respective Block or Taluka or Tehsil, the Ministry through its Implementing Agency shall provide Aadhaar enrolment facilities at convenient locations in coordination with the existing Registrars of UIDAI or by itself becoming UIDAI Registrar:

Provided that till the time Aadhaar is assigned to the beneficiary, benefit under the Scheme shall be given to such beneficiaries, subject to production of the following documents, namely:-

(a) (i) if enrolled, Aadhaar Enrolment ID slip of the beneficiary; or
(ii) a copy of request made for Aadhaar enrolment, as specified in sub-paragraph (2) of paragraph 2; and

(b) any of the following documents:

(i) Bank Passbook or Post office Passbook with photo; or (ii) Voter identity card; or (iii) Ration Card; or (iv) Permanent Account Number Card; or (v) Driving license issued by the Licensing Authority under the Motor Vehicles Act, 1988 (59 of 1988); or (vi) MGNREGS Card; or (vii) Kisan Photo Passbook; or (viii) Passport; or (ix) Certificate of Identity having photo of such person issued by a Gazetted Officer or a Tehsildar on an official letter head; or (x) Any other document as specified by the Ministry:

Provided further that the above documents shall be checked by an officer specifically designated by the Ministry for that purpose.

2. In order to provide convenient and hassle-free benefits to the beneficiaries under the Scheme, the Ministry through its Implementing Agency shall make all the required arrangements including the following, namely:-

(1) Wide publicity through media and individual notices shall be given to the beneficiaries to make them aware of the requirement of Aadhaar under the Scheme and they may be advised to get themselves enrolled at the nearest Aadhaar enrolment centres available in their areas, in case they are not already enrolled. The list of locally available enrolment centres shall be made available to them.

(2) In case, the beneficiaries under the Scheme are not able to enrol for Aadhaar due to non-availability of enrolment centres in the vicinity such as in the Block or Taluka or Tehsil, the Ministry through its Implementing Agency shall provide Aadhaar enrolment facilities at convenient locations, and the beneficiaries may be requested to register their requests for Aadhaar enrolment by giving their names, addresses, mobile numbers and other details as specified in the first proviso to sub-paragraph (3) of paragraph 1, with the designated officials of the Ministry or Implementing Agency or through the web portal provided for the purpose.

(3) In case, the beneficiaries under the Scheme who have enrolled for Aadhaar, however, are not able to produce Aadhaar number for any reason whatsoever, the Ministry through its Implementing Agency shall provide “Search My Aadhaar” facility through UIDAI’s Enrolment and Update Client by facilitating Aadhaar enrolment facilities at convenient locations, and the beneficiaries may be requested to search their Aadhaar in assisted mode by giving their name, address, mobile number, finger-prints and other details, with the operator required to search beneficiary’s Aadhaar, subject to the provisions of the said Act and regulations made thereunder, with respect to restriction on sharing, circulating or publishing of Aadhaar number.

3. In all cases, where Aadhaar authentication fails due to poor biometrics of beneficiaries or due to any other reason, the following exception handling mechanisms shall be adopted, namely:-

(a) in case of poor fingerprint quality, IRIS scan facility shall be adopted for authentication, thereby the Ministry through its Implementing Agency make provisions for IRIS scanners along with fingerprint scanners for delivery of benefits in a seamless manner;

(b) in case of difficulty in fingerprints or IRIS authentication of senior citizens of the beneficiaries, face authentication shall be used. The Ministry through its Implementing Agency shall make arrangements for face authentication wherever feasible, for those beneficiaries whose other modes of authentication fail;

(c) in case of biometric authentication through fingerprints or IRIS or face authentication is not successful, wherever feasible and admissible authentication by Aadhaar OTP or TOTP with limited time validity, as the case may be, shall be preferred;

(d) in all other cases where biometric or OTP authentication is not possible, benefits may be given on the basis of physical Aadhaar letter whose authenticity can be verified through the QR code printed on the Aadhaar letter. For this, the Ministry through its Implementing Agency shall provide QR code readers at point of service delivery to read QR code printed on Aadhaar Letter on E-Aadhaar which allows verifying the authenticity of Aadhaar Card in offline manner. This QR code shall preferably be read through Secure QR code reader developed by UIDAI as it provides digitally signed details of Aadhaar Holder. In all such cases the benefits may be provided after duly recording the transaction in the exception handling register made for this purpose, which is to be reviewed and audited periodically by the Ministry. Maintenance of these registers and periodic inspection will be an essential component of exception handling mechanism.

4. This notification shall come into effect from the date of its publication in the Official Gazette in all the States and Union territories except the State of Jammu and Kashmir.

Ministry of Information and Electronics Technology 

[Notification dt. 10-08-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Ranjan Gogoi, CJ and RF Nariman, J has refused to re-open the National Register of Citizens (NRC) process in Assam.

The Court elaborately discussed the NRC exercise as below:

  • Section 6A of the Act which was inserted with effect from 7th December, 1985 by the Citizenship (Amendment) Act, 1985 (Act No.65 of 1985), carves out a special category of citizens in the State of Assam.
  • In view of the special category of citizens so created a special procedure came to be prescribed by Rule 4A of the 2003 Rules read with the Schedule thereto in the matter of preparation of National Register of Indian Citizens in the State of Assam whereby the claims of all persons (including persons born in India) for inclusion in the NRC were to be related to the entries 19 either in the National Register of Citizens 1951 or any of the electoral rolls prepared upto the midnight of the 24th day of March,1971 or on the basis of any of the additional documents referred to earlier.
  • The above said procedure was necessitated on account of a large number of persons who acquired citizenship by virtue of Section 6A of the Act without being actually born within the territories of India. Yet, as Section 6A of the Act confers citizenship on such person(s), a special procedure, indicated above, has to be devised for inclusion in the NRC in the State of Assam. This is what was agreed upon under the Assam Accord which led to the introduction of Section 6A in the Citizenship Act, 1955 with effect from 7th December, 1985.

Considering the abovementioned procedure, the Court said,

“The entire NRC exercise having been performed on the aforesaid basis, the same cannot be now ordered to be reopened by initiation of a fresh exercise on certain other parameters that have been suggested on behalf of the intervenors/applicants on the strength of the provisions of Section 3(1)(a) of the Act.”

On the issue of the maintenance of security of the NRC data, the bench directed the Central Government to enact an appropriate regime for on lines similar to the security regime provided for AADHAR data. Only thereafter, the list of inclusions and exclusions shall be made available to the State Government, Central Government and Registrar General of India.

The Court further directed,

  • only hard-copies of the supplementary list of inclusions be published at the NRC Seva Centers, Circle Offices and Offices of the District Magistrates of the State.
  • the list of exclusions be published on 31st August, 2019 shall be published only on on-line and shall be family-wise.

[Assam Public Works v. Union of India, 2019 SCC OnLine SC 1025, decided on 13.08.2019]

Hot Off The PressNews

As reported by ANI, Rajya Sabha in today’s session has passed the Aadhaar and Other Laws (Amendment) Bill, 2019.

A bill to allow voluntary use of Aadhaar as proof of identity for opening bank accounts and getting mobile connections which were passed by Lok Sabha last week has today, i.e. 08-07-2019 been passed by Rajya Sabha

The said bill will amend the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and further to amend the Indian Telegraph Act, 1885 and the Prevention of Money-laundering Act, 2002.

[Please refer the link for the bill: Aadhaar and Other Laws (Amendment) Bill, 2019]

 

Case BriefsHigh Courts

Bombay High Court: Providing relief to a lone Mumbai Port Trust employee who refused to link his salary account to Aadhaar, a Division Bench comprising of Akhil Kureshi and SJ Kathawala, JJ. has directed the trust to release his salary which was pending for over 30 months. The Court added interest of 7.5% per annum for delaying/withholding the payment of salary.

In December 2015, the Trust had issued a circular directing all employees to register their Aadhaar, failing which salary will not be credited to their account. The petitioner refused and approached the court to appeal for withdrawal of this circular. At this time, another petition was going on in the Supreme Court challenging the linking of Aadhaar with various schemes and payments. The respondent side contended that out of 800 employees, the petitioner was the sole employee who had objected to the linking.

The Court held, that even as a sole objector he had the right to dissent and the Port Trust had not been able to justify by what authority they were upholding his salary just because the matter was pending in the Supreme Court. Now that the Supreme Court has released its verdict in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the trust should waste no more time in releasing his dues along with the penalty of interest for withholding the salary without any authority. [Ramesh R. Kurhade v. Financial Advisor and Chief Accounts Officer, Establishment Section, 2019 SCC OnLine Bom 1060, decided on 20-06-2019]

Legislation UpdatesNotifications

In exercise of the powers conferred under sub-section (2) of Section 139 AA of the Income Tax Act, 1961, the Central Government, hereby notifies that every person who has been allotted permanent account number as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to the Principal Director General of Income-tax (Systems) or Principal Director of Income-tax (Systems) in the form and manner specified in Notification no. 7 dated 29th of June, 2017 issued by the Principal Director General of Income Tax (Systems) by 30-09-2019.

2. This notification shall not be applicable to those persons or such class of persons or any State or part of any State who/which are/ is specifically excluded under sub-section (3) of Section 139 AA of the Act.

3. However, notwithstanding the last date of linking of Aadhaar number with PAN being extended to 30-09-2019 in para 1 above, it is also made clear in Circular o. 6 of 2019 that w.e.f. 01-04-2019, it is mandatory to quote Aadhaar number while filing the return of income as required under Section 139 AA (1)(ii) unless specifically exempted as per any notification issued under sub-section (3) of Section 139 AA of the Act. It is also made clear that the returns being filed either electronically or manually cannot be filed without quoting the Aadhaar Number.

Notification No. 31/2019

Dated 31-03-2019

Central Board of Direct Taxes

Legislation UpdatesRules & Regulations

No.K-11022/632/2019/Auth-UIDAI (No. 1 of 2019)—In exercise of the powers conferred by sub-section (1) and sub-clause (f) of sub-section (2) of Section 54 read with Section 8 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and Regulation 12 (7) of the Aadhaar (Authentication) Regulations, 2016, the Unique Identification Authority of India hereby makes the following regulations, namely:—

1. Short title and commencement—
(1) These regulations may be called the Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019 (No. 1 of 2019).
(2) These shall come into force from the date of their publication in the Official Gazette.

2. Pricing of Aadhaar Authentication Services—
(1) Aadhaar authentication services shall be charged @ Rs 20 (including taxes) for each e-KYC transaction and Rs 0.50 (including taxes) for each Yes/No authentication transaction from requesting entities;

(2) Government entities and the Department of Posts shall be exempt from Authentication transaction charges; and

(3) Scheduled Commercial Banks engaged in providing Aadhaar enrolment and update facilities in accordance with Gazette Notification no. 13012/79/2017/Legal-UIDAI (No. 4 of 2017) dated 14th July 2017 shall be exempt from Authentication transaction charges. However, such banks, which fall short of the Aadhaar enrolment and update targets, as communicated from time to time, will be charged in proportion to the shortfall in achieving the target.

(4) The above charges shall be in addition to the License fees and financial disincentives, as applicable.

(5) Details of the transaction error codes and its charges shall be issued separately.

3. Discontinuation of authentication and e-KYC services—
(1) If an existing requesting entity [except those exempt under Regulations 2(2) and 2(3) above], continues to use Aadhaar authentication services beyond the date of publication of these Regulations, it shall be deemed to have agreed to the specified authentication charges. The entities shall be required to deposit the authentication transaction charges within 15 days of issuance of the concerned invoice based on the usage. The delay in payment beyond 15 days shall attract interest compounded @ 1.5% per month and discontinuation of authentication and e-KYC services.

(2) In case a requesting entity does not wish to pay authentication transaction charges, it shall discontinue the use of Aadhaar authentication services and intimate its decision to the UIDAI immediately, and it shall surrender its access to the authentication facilities as per Regulation 23 of the Aadhaar (Authentication) Regulations, 2016. However, the transaction charges as applicable till the date of deactivation of access to authentication services shall have to be paid.

The Unique Identification Authority of India

Hot Off The PressNews

Petitioner named Imtiyaz Ali Palsaniya has filed for a review petition in the Supreme Court against the Constitution Bench decision in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), 2018 SCC Online SC 1642.

In the1448-pages detailed judgment, 5- Judge Bench comprising of former CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan, JJ. by a majority of 4:1, declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy.

The said judgment has been challenged by the petitioner who stated that ‘various grounds urged in applications filed weren’t considered by the Court.‘

[Source:https://theleaflet.in]

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Vide its orders dated 31.07.2017, 31.08.2017, 08.12.2017 and 27.03.2018, CBDT had allowed time till 30th June, 2018 to link PAN with Aadhaar while filing the tax returns. Upon consideration of the matter, CBDT vide order dated 30.6.2018 under Section 119 of the Income Tax Act, 1961 has further extended the time for linking PAN with Aadhaar till 31st March, 2019.

Ministry of Finance

[F.No.225/270/2017/ITA.II]

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After hearing the much-debated Aadhaar matter for 38 days, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ has reserved the judgment. The hearing had begun on January 17, 2018.

Below are the highlights from the arguments advanced on the last day of the Aadhaar Hearing:

  • Senior Advocate Gopal Subramanium: 
    • Is Aadhaar really affirmative action? Is the act an enabler or is it in the guise of enabler? The act is not an instrumentality to deliver services. It is only a means of identification. We have to read the true purpose of law and whether the law seeks to achieve that purpose. Dignity and autonomy is not preserved by section 7 of the Aadhaar Act.
    • Aadhaar Act does not have a proper purpose. A claim to a proper purpose is not proper purpose. Authentication is at the heart of the Act. Failure of authentication is a ground for denial of services.
  • Chandrachud, J: An act like Aadhaar needs a regulator which is absent.
  • Gopal Subramanium: The state seeks to take away our data without the backing of a strong data protection framework. Words like “grant of subsidies, benefits and services” are expressions of condescension in Section 7. They are not treated like an entitlement. The burden is on the people to authenticate and establish their identity. Should the State logically be the holder of such information?
  • Chandrachud, J: Is “subsidy” a benefit or a right, that has to be decided.
  • Gopal Subramanium: 
    • Private players have access to Aadhaar data. There is no regime of protection. There is no vertical protection.
    • Section 7 has been interpreted to be mandatory. Can’t make citizens subservient under section 7 and call rights, benefits.
    • The Act is to be struck down completely as it fails all three tests laid down in Puttaswamy. There’s no legitimate state aim as the real aim is different from the purported aim. There was no law when Aadhaar was implemented and there’s no proportionality.
    • This Court consciously overruled ADM Jabalpur. The doctrine of possibility of misuse does not apply here because there is actual denial of rights in the case of Aadhaar.
    • Aadhaar Act should be completely struck down and the architecture and database must be destroyed.

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  • Senior Advocate Arvind P. Datar:
    • Aadhaar cannot be a money bill. At most, it can be a financial bill of category 3 under Article 117(3) of the Constitution.
    • Doctrine of severability will not apply to Aadhaar, since the doctrine is only applicable to validly enacted laws.
    • Mohd.Saeed Siddiqui and Yogendra Jaiswal should be overruled. Finality of speaker’s decision doesn’t mean that the bill cannot be subject to judicial review.
    • Under PMLA, Aadhaar is not just confined to banks but has gone beyond it’s scope. Aadhaar is needed for mutual funds, insurance policies and credit cards as well, among other things.
    • Only magic words like black money, national security and terrorism are being thrown around by the State. The justification of a law for proportionality cannot be a ritualistic exercise. Aadhaar is not justified under Article 300A of the Constitution.
    • Linking Aadhaar will never solve problems of money laundering and black money because the source of such money is different. This is colorable exercise of power. Black money and money laundering is being used as a ruse to collect people’s biometrics.
    • Section 57 should go completely. Anything outside Section 7 is completely violative of the Puttaswamy judgement. S.139AA of the income tax act is inconsistent with the Aadhaar Act.
    • There should be an option of opting out of Aadhaar.

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  • Senior Advocate P. Chidambaram:
    • AG’s reading of the word “only” in Article 110(g) is erroneous. There is no need to tamper the language of the Article.
    • Section 57 travels beyond Article 110 of the Constitution. Clause (g) of 110 (1) must be read very restrictively. The provision has to be incidental to (a) to (f) to come under (g). Clause (g) is not a substantive provision.
    • The implications of passing a non money bill as a money bill are very serious: One half of the parliament is virtually disabled from making any amendments. It denudes the highest constitutional authority of the country, the President of India.
    • There is no provision in the Constitution which gives the court the power of severability in case of an invalidly enacted legislation. The Australian constitution has such a provision.
    • The bill was passed without the effective participation of the Rajya Sabha and without assent from the President. The court cannot save a legislation that is fundamentally unconstitutional.
    • Pith and Substance doctrine cannot be applied in cases where the applicability of Article 110 is being interpreted. Only limited to entries of legislative lists.
    • The Court must strike down the Aadhaar Act as it is not a money bill. It is a mockery of Article 110.

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  • Senior Advocate K.V Vishwanathan: 
    • Respondents’ argument that the least intrusive method is not a facet of proportionality is completely erroneous. You can’t balance your own bundle of rights. Balancing Right to food and right to privacy is wrong.
    • Section 59 doesn’t protect Aadhaar during the time it was not an Act. Its a wrong submission made by the state. To rely on the exception handling mechanism is ultra vires the Act.
    • If it’s my rights and their duty, then they cannot discharge their duty by subjecting the poor and downtrodden of this country to a technological menace.
    • There can be no data collection and digitalization of records. The underpinning of the Aadhaar Act is authentication of individuals.
    • Harmonization of rights is being mis-applied by the respondents.

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To read the highlights from the rejoinder submitted by the petitioners, click here and here.

To read the highlights from the submissions of AG KK Venugopal on the issue of money bill, click here.

To read the highlights from the submissions of Advocate Zoheb Hossain, click here.

To read the highlights from the submissions of Advocate Gopal Sankarnarayanan and Senior Advocate Neeraj Kishan Kaul, click here.

To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here , here , here , here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click here, here and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1, Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/SFLCin