2. That Section 7 of the Act deals with “Proof of Aadhaar number necessary for receipt of certain subsidies, benefits and services, etc”. It reads as under:
“The Central Government or, as the case may be, the State Government may, for the purpose of establishing identity of an individual has a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment:
Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service”.
3. That in pursuance of the provisions of Section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Ministry of Labour and Employment, government of India issued a Notification No. S.O.26 (E) dated 4th January 2017 for submission of Aadhaar as identity document by the Pensioners and Members of the EPS, 1995. This was published in the Gazette of India on 4th January 2017.
4. That the Constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 known as Aadhaar Act was challenged amongst the concept of Aadhaar was challenged in the Supreme Court in Justice K.S. Puttaswamy (Retd.) vs Union of India in Writ Petition No. 494 of 2012. The Supreme Court decided the matter vide its majority judgment dated 26.09.2018.
5. That at Page 390 of 567 of the majority judgment it is important to note what the Court has laid down at para 322 which reads as under
“We also make it clear that a benefit that is earned by an individual (e.g. pension by a government employee) cannot be covered under Section 7 of the Act, as it is the right of the individual to receive such benefit. At the same time, we have gone through the list of notifications, which are issued under Section 7 of the Aadhaar Act. We find that most of these notifications pertain to various welfare schemes under which benefits, subsidies or services are provided to the intending recipients. Moreover, in order to avail the benefits, only one time verification is required except for few services where annual verification is needed. It is only in respect of fertilizer subsidy where authentication is required every time the fertilizer is disbursed. However, it is clarified that fertilizer is also given on the basis of other documents such as Kisan Credit Card, etc. At the same time, we hope that the respondents shall not unduly expand the scope of ‘subsidies, services and benefits’ thereby widening the net of Aadhaar, where it is not permitted otherwise. Insofar as notifications relating to children are concerned, we have already dealt with the same separately. We, thus, conclude this aspect as under:
(a) ‘benefits’ and ‘services’ as mentioned in Section 7 should be those which have the colour of some kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doling out such benefits which are targeted at a particular deprived class.
(b) The expenditure thereof has to be drawn from the Consolidated Fund of India.
(c) On that basis, CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law”.
6. That the above judgment clearly states "benefits earned by an individual" cannot be covered under Section 7 of the Aadhaar Act. This means the Government cannot make linking of an employee's PF account to his Aadhaar number mandatory, or put the responsibility of validating an employee's Aadhaar details with his PF account information on employers.
7. That the Notification dated 4th January 2017 was issued under Section 7 of the Aadhaar Act which has been read down by the judgment of the Supreme Court and therefore, the notification loses its force and cannot be held to be a valid notification in the eyes of law.
It is also important to mention that the EPFO has now issued a circular no. LC-4(115)2018/Aadhar/LO/13470 dated 18.10.2018 which is self explanatory wherein the ACC(HQ)(Legal) has advised the PF authorities not to take any coercive action after the judgment of the Supreme Court on Aadhaar. This circular is attached. A reply may be sent incorporating the above.
If any further clarification is required, the same can be sent on mail to me.
24th October 2018 From India, undefined