A five-judge Constitution bench of the Supreme Court would commence tomorrow the hearing on a batch ofpetitions challenging the validity of the Aadhaar scheme and the aspect of right to privacy attached to it. The Constitution bench would comprise Chief Justice J S Khehar and Justices J Chelameswar, S A Bobde, D Y Chandrachud and S Abdul Nazeer. The apex court had agreed to set up a bench on July 12 to deal with the Aadhaar-related matters after Attorney General K K 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.
The attorney general and Divan had mentioned the matter before the CJI as a three-judge bench had on July seven said that all issues arising out of Aadhaar should finally be decided by a larger bench and the CJI would take a call on the need for setting up a Constitution bench. A three-judge bench 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.
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“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.