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2020 DIGILAW 110 (ORI)

Mahendra Kumar Parida v. State Of Odisha

2020-05-14

C.R.DASH, MOHAMMAD RAFIQ

body2020
JUDGMENT Mohammad Rafiq, CJ. - This writ petition by way of Public Interest Litigation has been filed by Mahendra Kumar Parida-petitioner questioning the decision of the Government of Odisha to consider Aadhar Card as the only proof of identification of the migrant workers and other people in the COVID-19 Odisha State Portal and offline forms available at Gram Panchayats or Urban Local Bodies for the purpose of registration. 2. Prayer has been made to direct the respondent-State to accept other ID proofs, such as Voter ID, Ration Card, MGNREGS ID Card etc. and in absence of any of them, the identification by the Sarpanch of Gram Panchyayat concerned attesting the identity of such migrant labourers, as valid proof for registration as an alternate to Aadhaar Card for registration in COVID-19 Odisha State Portal. 3. Mr. Ishwar Mohanty, learned counsel for the petitioner has argued that the respondent-State at the initiative of Union of India during the continuation of Lock-down 3 in the light of pandemic COVID-19 has taken a laudable decision to bring back several lakhs of Odia migrant labourers from other parts of the country to the State. It has for this purpose made an online portal-named COVID-19 Odisha State Portal (for short "the State Portal"), for registration of such returnees into the State. Simultaneously, forms have been made available at the Gram Panchayat Offices from where the relatives of such migrant labourers can procure and register them at the Panchayat Offices. Registration by either of the modes mandatorily requires Aadhaar Card with its number of the person willing to register as the only proof of identification. Those who are unable to submit the Aadhaar number would not be registered on the portal, thus depriving him/her from entering the State. 4. Referring to Section 7 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (for short 'the Aadhaar Act'), learned counsel for the petitioner submitted that Aadhaar number can be used only for the purpose of establishing identity of individual for receipt of any such subsidy, benefit or service, which are incurred on the Consolidated Fund of India. Even the proviso to section 7 of the Aadhaar Act stipulates that if Aadhaar number is not assigned to an individual, then alternative and viable means of identification shall be offered to the individual for delivery of the subsidy, benefit or service. Even the proviso to section 7 of the Aadhaar Act stipulates that if Aadhaar number is not assigned to an individual, then alternative and viable means of identification shall be offered to the individual for delivery of the subsidy, benefit or service. The registration process in the present case is aimed at regulating the entry of stranded migrant labourers and other persons who are willing to enter the State of Odisha. It has therefore no nexus with any of the stated purposes enumerated under Section 7 of the Aadhaar Act. 5. Learned counsel for the petitioner in support of his argument has relied on the decision of the Supreme Court in the case of K.S. Puttaswamy (retired) and another v. Union of India and another, (2019) 1 SCC 1 and argued that the majority opinion therein while interpreting the "benefits" and "services" categorically held that the scope is not to be unduly expanded thereby widening the net of Aadhaar, where it is not permitted otherwise. 6. Learned counsel for the petitioner has also argued that every person including those who are permanent native of the State of Odisha, being citizens of the country, have fundamental right to reside and settle in any part of India guaranteed under Article 19(1)(d) and (e) of the Constitution of India. Non-furnishing of Aadhaar number cannot be a criteria to deny them entry into the State vis- -vis this action is only illegally and arbitrary. 7. Looking to the significance of the issue and the urgency of the situation, this Court, when the matter was listed on 12th of May, 2020, while issuing notice to the respondent-State, called upon the learned Advocate General to seek instructions of the State Government as to why, apart from Aadhaar Card, the other documents, such as Voter ID Card, Ration Card, MGNREGS ID Card or any other documents, may not also be additionally allowed to be used for the purpose of registration of the migrant labourers and others entering the State of Odisha for registration, on the State Portal for online, as well as offline on forms available at various Gram Panchayats and other Urban Local Bodies of the State of Odisha. 8. 8. The State Government has filed its counter affidavit to the writ petition stating that after announcement of Lock-down, many migrant labourers and Odia travelers stranded in other States of the country have requested Government of Odisha to bring them back and to make such necessary arrangements, as required. In this regard, Government of Odisha launched the registration process for such migrants. It was also declared by Government of Odisha that the migrant workers will also have to mandatorily undergo quarantine for a specified period. Launch of such portal for registering these stranded people was intended to get a measure of authentic duplication-free citizen data so that the travel plans, quarantine/medical facilities and other infrastructures can be planned by the State of Odisha. The sole purpose was to use this portal as a planning tool. This portal was never made as a planning tool. Registration on this portal was never made a precondition for entry into the State of Odisha. It is submitted that the aforesaid purpose is clearly mentioned in the Frequently Asked Questions (for short 'FAQs') section of the State Portal, appended hereto as Annexure-1, which states that "in order to prevent the spread of the COVID-19 pandemic, all the persons returning to Odisha will have to undergo mandatory 14-days quarantine as a precautionary measure. Government will be creating quarantine facilities in the gram Panchayats and Urban Local Body areas. The registration is required for the Government to make the required arrangements for the Quarantine. It is further submitted Aadhaar number is not mandatory for entry into the State of Odisha. The Aadhaar number collected during registration of migrant was not only a proof of identity but was primarily used to avoid duplication in registration process. The intention of the pre-registration is not to disallow anyone to come into Odisha, if the person has not pre-registered but for purpose of planning for ensuring that Odisha government is able to protect its people from Covid-19 in the best possible manner. It is further submitted that people travelling to Odisha have not been denied entry into the state on the grounds of nonregistration in this portal. It can be seen that many persons have come to Odisha, who were not registered at all. It is further submitted that people travelling to Odisha have not been denied entry into the state on the grounds of nonregistration in this portal. It can be seen that many persons have come to Odisha, who were not registered at all. The details are given in Annexure-B and Annexure-C which gives sample data of the persons who have returned to Odisha during this process in trains, buses and private vehicles. It clearly shows that people who were not registered have also been allowed entry and are being treated at par. 9. Learned Advocate General submitted that apart from Aadhaar Card, the State Government has allowed various other documents to be used for the purpose of registration both online and offline, of the migrant labourers and others entering the State of Odisha during the period of Lock-down and therefore the apprehension of the petitioner is unfounded. Annexure-D to the counter affidavit filed by the State specifies several other documents which can be used for the purpose of registration. 10. We are inclined to uphold the argument that possession of Aadhaar Card and its number cannot be the sole criteria for registration of any migrant labourer and any other citizens entering the State of Odisha for the purpose of registration with State Portal or with the Gram Panchayat/Urban Local Bodies. We may in this connection, usefully refer to the following observations of the Constitutional Bench of the Supreme Court in K.S. Puttaswamy (supra). "376. Another facet which needs examination at this stage is the meaning that is to be assigned to the expression "benefits" occurring in Section 7 of the Aadhaar Act, along with "subsidies" and "services". It was argued that the expression "benefits" is very loose and wide and the respondents may attempt to bring within its sweep any and every kind of governmental activity in the name of welfare of communities, which would result in making the requirement of Aadhaar virtually mandatory. It was pointed out that by issuing various circulars the Government has already brought within the sweep of Section 7, almost 139 such subsidies, services and benefits. 377. No doubt, the Government cannot take umbrage under the aforesaid provision to enlarge the scope of subsidies, services and benefits. It was pointed out that by issuing various circulars the Government has already brought within the sweep of Section 7, almost 139 such subsidies, services and benefits. 377. No doubt, the Government cannot take umbrage under the aforesaid provision to enlarge the scope of subsidies, services and benefits. "Benefits" should be such which are in the nature of welfare schemes for which resources are to be drawn from the Consolidated Fund of India." The majority opinion finally concluded the above issue at para 511 as under: "511.13. As far as subsidies, services and benefits are concerned, their scope is not to be unduly expanded thereby widening the net of Aadhaar, where it is not permitted otherwise. In this respect, it is held as under: 511.13.1. "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 511.13.2. It would cover only those "benefits", etc. the expenditure thereof has to be drawn from the Consolidated Fund of India." 11. The State Government has now clarified this position in their counter affidavit that it has now incorporated various other documents, alongside the Aadhaar Card, as the basis of such registration, which are enumerated in Annexure-D thereto. Various indicated documents therein are as follows: "Aadhaar Card Address Card with photo issued by Deptt. of Posts, Govt. of India Arms License Cast and Domicile Certificate with photo issued by State Govt. Certificate of address having Photo issued by MP/MLA/Group-A Gazetted Officer Certificate of address with photo from Govt. recognized educational institutions Certificate of photo identity issued by Village Panchayat head CGHS/ECHS Card Current passbook of Post Office / any scheduled bank having photo Driving License L Election Commission ID Card Freedom Fighter Card having photo Income Tax PAN Card Kissan Passbook having photo Passport Pensioner Card having photo L Photo Credit Card Photo Identify Card (of Central Govt./PSU or State Govt./PSU only) Photo Identity Card issued by Govt. recognized educational institutions." 12. recognized educational institutions." 12. In view of the above, this writ petition is disposed of directing the respondent-State Authorities and Collectors of all the districts of the State to act upon any of the aforementioned documents for the purpose of registration of migrant labourers and other travelling to State of Odisha during the Lock-down period imposed on account of spread of pandemic Coronavirus (COVID19). 13. With the above observation, the writ petition is accordingly disposed of. As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this judgment available in the High Court's official website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587 dated 25.03.2020.