The blatant and repeated exhortations by wings of the government, and banks and financial services to compel citizens to link the Aadhar and UID to bank accounts etc is in gross violation of the Supreme Court’s Orders. Retired Major General S.G. Vombatkere has, in a letter to the Secretary, Ministry of Finance, Dr. HasmukhAdhia, pointed this out. The letter has also been copied to DrUrjit R Patel, Governor, Reserve Bank of India and the Chief Justice of the Supreme Court, Dipak Misra.
Though the GOI has committed on oath to only link Aadhar UID to certain government beneficiary related schemes in fact it is being forced on to citizens in utter contempt of the Supreme Court Orders, says an open communication by a former, senior Indian army official.
The text of the letter dated October 5, 2017 is below:
Subject: Contempt of Rule of Law and the orders of the Supreme Court of India
Dear Dr. Hasmukh Adhia,
Mandeep Kaur, Dy. Secretary of your Department notified GSR 538(E), citing powers conferred by sub-section (1) read with clause (h), clause (i), clause (j) and clause (k) of sub-section (2) of section 73 of the Prevention of Money-laundering Act, 2002 (15 of 2003), on 01.06.2017.
I draw your attention to the following:
1. A five member bench headed by the then Chief Justice of India in its Order dated 15.10.2015, had reiterated all its previous orders. In particular we draw your attention that the Court stated that:
(a) “After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan DhanYojana (PMJDY) and Employees’ Providend Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015”
(b) “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013”
(c) “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”
2. The three member bench of the court had noted earlier in its order of 11.08.2015 that: “The learned Attorney General had stated that the respondent Union of India would ensure that Aadhaar cards would only be issued on a consensual basis after informing the public at large about the fact that the preparation of Aadhaar card involving the parting of biometric information of the individual, which shall however not be used for any purpose other than a social benefit schemes.”. It had therefore ordered that
(a) “The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;”
(b) “The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.
3. In its first order of 23.09.2013, the Court had highlighted that “In the meanwhile, no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory”.
4. Under section 74 of the Prevention of Money-laundering Act, 2002 (15 of 2003) every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. The rules have not been laid before the Parliament as required by parliamentary procedure.
5. Furthermore while clause (h) of the Prevention of Money-laundering Act, 2002 (15 of 2003) was omitted by s.29 with effect from 15.2.2013 and clause (i), clause (j) and clause (k) of sub-section (2) of section 73 does not allow for freezing of any asset or making it inoperable.
6. Furthermore, the use of Aadhaar for linking to other databases, retention, storage or publishing is not only prohibited but also a punishable offence under the TheAadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016.
7. It is evident that the GSR 538(E) to require linkage of Aadhaar is invalid and bad in law. More over it is in contempt of the Supreme Court and a disrespect for the Rule of Law. The tactic to coerce people under an invalid legislation that is in contempt of court is undemocratic and deplorable.
8. In light of these facts, and to ensure that you do not continue to commit contempt of the Hon’ble Supreme Court of India, disregard the Rule of Law and get embroiled in needless controversy, money-laundering, and criminality that results from the use and linkage of Aadhaar with the opening of bank accounts and undertaking financial transactions, we require that you kindly issue an immediate and urgent notification and advertise widely highlighting these facts and that banks can not and do not require or use Aadhaar numbers or Aadhaar information for any process including KYC and payment transactions.