A five-judge Constitution bench of the Supreme Court that today commenced hearing on a batch of petitions challenging the validity of the Aadhaar scheme and the aspect of right to privacy attached to it, has referred the matter to a larger nine-judge Constitution bench. The bench will decide whether right to privacy is a fundamental right under the Constitution and whether Aadhaar, a 12-digit unique idenitification number invades the right to privacy.
"We will determine the correctness of two previous verdicts which had held that the right to privacy is not a fundamental right," the Supreme Court said today.
The decision was arrived as the five-judge bench of the Supreme Court began hearing on a bunch of petitions related to Aadhaar. The bench, comprising Chief Justice JS Khehar and Justices J Chelameswar, SA Bobde, DY Chandrachud and S Abdul Nazeer, have referred the matter to a larger nine-judge Constitution bench.
The apex court had on July 12 decided that a five-judge bench of the court would hear the matters related to Aadhaar after Attorney General KK Venugopal and senior advocate Shyam Divan, appearing for petitioners who have challenged the government's move to make Aadhaar mandatory for various public welfare schemes, had jointly mentioned the matters.
Chief Justice of India JS Khehar had said that a five-judge bench of the apex court will hear the Aadhaar-related matters and also decide on whether the issue be referred to a larger bench. The court was to hear arguments from the petitioners as well as the government on July 18 and 19.
A three-judge bench of the SC had in 2015 referred to a Constitution bench the batch of petitions challenging the Centre's Aadhaar card scheme to decide whether right to privacy was a fundamental right.
The petitioners had claimed that collection and sharing of biometric information, as required under the scheme, was a breach of the "fundamental" right to privacy.
Allowing the Centre's plea, the court had framed various questions, including as to whether right to privacy is a fundamental right, to be decided by a Constitution bench. "If yes, then what would be contours of the right to privacy," the bench had said while referring the matter to the then CJI for setting up the larger bench.
At an earlier hearing, then AG Mukul Rohatgi, while backing the Aadhaar card scheme, had contended that right to privacy was not a fundamental right. "No judgment explicitly cites right to privacy as a fundamental right. It is not there under the letters of Article 21 either. If this court feels that there must be clarity on this subject, only a Constitution Bench can decide," the AG had said.
He had cited two judgments, pronounced by six and eight- judge benches, which had held that right to privacy is not a fundamental right. Subsequently, smaller benches had held a contrary view and, hence the matter needed to be decided by a larger bench, he had said.
"Whether right to privacy is a fundamental right guaranteed under Part III of the Constitution of India, in the light of express ratio to the contrary by an eight-judge bench in M P Sharma case and also by a six-judge bench of this court in Kharak Singh's case has to be decided," Rohtagi had said.
