The much-awaited Supreme Court judgment in the Aadhaar case is expected today. It is one of the most publicly debated cases in recent times and according to an observation by Mr. K.K. Venugopal, the Attorney General for India, the Aadhaar case had the longest hearing in the history of Supreme Court as the hearing continued for 38 days, ranking second only to the famous Keshavananda Bharti case. During the hearing of the Aadhaar case in Supreme Court, the senior advocates drew the court’s attention to different facets of the 2017 right to privacy judgment in the light of the provisions pertaining to the Aadhaar Act of 2016.
For instance, Senior Advocate Mr. Kapil Sibal referred to the Aadhaar case as the “most important case since Independence” and drew comparison as to why it is more significant even than the ADM Jabalpur case, pertaining to the Emergency. He argued that the Aadhaar is an illusory concept which violates the balance between the individual and the state. He further argued that such collection of information pertaining to citizens violates Article 14. Mr. Arvind P. Datar, Senior Advocate, had argued that introduction of the Aadhaar Act in the form of a Money Bill is unconstitutional and it violates the rule of law as well as the principle of proportionality. Mr. P. Chidambaram, Senior Advocate, had argued that the passage of the Aadhaar marks a dangerous precedent, given that the strict criteria pertaining a Money Bill has not even been complied with on a closer examination of some of the provisions of the Act. He further contended in reference to Article 110(3) that the Lok Sabha Speaker’s decision regarding a Bill being a Money Bill or not shall be final and does not exclude judicial review. Meanwhile, the Attorney General continued to highlight the importance of the Aadhaar project and explained why its constitutional validity should not be questioned and in arguing so, he was also relying on the judgment in the famous 2001 Narmada case.
Aadhaar Case in Supreme Court: Referral Order by 3 Judge Bench
The referral order by the three Judge Bench of the Supreme Court comprising of Justice Chelameshwar, Justice Bobde and Justice C. Nagappan directed that the Aadhaar case has to be heard by a larger Bench of this Court as it throws up for debate important questions given as follows–
(i) if there is any “right to privacy” guaranteed under the Constitution.
(ii) If it does exist, what is the source and what are the contours of such a right as there is no express provision in the Constitution pertaining to the right to privacy.
The referral order stated that the batch of matters pertaining to the Aadhaar case require to be heard and decided by a larger bench of at least five Judges “in view of the mandate contained under Article 145(3)2 of the Constitution of India.”
At the time, it may noted that Senior Advocates, Gopal Subramaniam and Shyam Divan had opposed the suggestion that the batch of matters be heard by a larger Bench. However, the referral order by the three Judge bench observed that the Aadhaar case raises far reaching questions of importance which involves interpretation of the Constitution.”
“What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21.”
It also states that there seems to be a certain degree of ‘unresolved contradiction’ in the law pertaining to the right of privacy as declared by the apex court, which needs clarity.
The referral order also refers to how the institutional integrity and judicial discipline require that pronouncement made by larger benches of the Supreme Court tend to be taken seriously by the smaller Benches, which cannot be ignored by them without giving the appropriate reasons for not following the larger Bench’s pronouncements. Meanwhile, all eyes are on Supreme Court’s judgment pertaining to the Aadhaar case today.