Photo: Priyanka Parashar/Mint
Photo: Priyanka Parashar/Mint

Fresh hope for Aadhaar as SC forms bench to review interim ruling

The bench comprises Chief Justice of India H.L Dattu, and justices M.Y Eqbal, C. Nagappan, Arun Mishra and Amitava Roy, who will now hear various pleas related to Aadhaar clubbed together

New Delhi: There was fresh hope for the government after the Supreme Court on Friday formed a five-judge constitution bench to hear its plea seeking a modification to the apex court’s interim order restricting the use of Aadhaar unique identity number only to identify beneficiaries availing of the public distribution system (PDS), and kerosene and cooking gas subsidies.

The bench comprises Chief Justice of India (CJI) H.L Dattu, and justices M.Y Eqbal, C. Nagappan, Arun Mishra and Amitava Roy, who will now hear various pleas related to Aadhaar clubbed together.

The hearings by the bench are scheduled to begin from 14 October.

Two separate references have been made to a constitution bench in the Aadhaar case—one seeking modification and clarification of the court’s interim order on 11 August, and the other on potential violation of privacy.

“My understanding is that a five-judge bench can actually decide on overruling the interim orders passed by the court earlier," said Rahul Singh, a research scholar at Balliol College, University of Oxford. “The constitutional aspects of privacy issue, of course, cannot be decided by any bench lesser than a nine-judge bench, because any other bench will be bound by M.P. Sharma precedent. But for interim orders, a five-judge bench should suffice."

The Supreme Court in 1954, in the case of M.P. Sharma vs Satish Chandra, ruled that the right to privacy was not a fundamental right recognized by the Constitution. This case was decided by an eight-judge bench of the apex court, and only a bench of equal or larger strength will be able to override that decision.

On Wednesday, a three-judge bench of the apex court declined to modify the interim order, referring it to a constitutional bench for consideration.

A bench of justices J. Chelameswar, C. Nagappan and S.A. Bobde ruled on 11 August that Aadhaar was neither compulsory nor a condition for accessing benefits one was already entitled to.

In the same ruling, the court referred to a constitution bench the question of whether it violates the right to privacy of individuals.

The Union government, regulatory agencies such as the Securities and Exchange Board of India and Reserve Bank of India, Telecom Regulatory Authority of India, and petitioners who have challenged the Aadhaar scheme on privacy grounds had asked for the formation of a larger bench to hear the case at the earliest.

The petitioners, in mentions before CJI, had asked for a bench of nine judges. CJI expressed concerns about sparing so many judges to hear the matter.

Attorney general Mukul Rohatgi informed CJI about the urgency of the issue, saying that many government schemes had been stuck on account of the court’s interim order.

The decision of the constitution bench will have an impact on important digital initiatives of the government such as biometric attendance, Jan-Dhan Yojana, digital certificates, pension payments and the proposed introduction of payments banks. All the initiatives critically depend on the Aadhaar unique identity number.

“It is good that the SC has realized the importance of the matter and appointed a bench which hopefully will resolve the case as it is a matter of rights of 920 million people enrolled with Aadhaar," said a government official close to the development who did not want to be identified.

“Our understanding is that all matters will be heard. We consulted lawyers who said that in such cases, normally a five-judge bench is constituted who look into the past matter and then they take a decision on a larger bench, if required," the official added.

Several pleas concerning Aadhaar have been clubbed together to be heard by the constitution bench. Some relate to the Aadhaar number being made mandatory to avail of certain government benefits and services. Others deal with the number itself being a violation of an individual’s privacy, especially in the absence of any supporting regulation or oversight, and some deal with possible misuse of the information that is collected under the project.

“The right to privacy, which is a fundamental right under right to life, will be severely jeopardized if the SC does not form the larger constitutional bench. Privacy issue is a major concern, which should not be delayed," said a petitioner requesting anonymity.

On the issue of privacy, research scholar Singh said it was a complex understanding of the law and the trade-offs that it entails. “How much liberty will you be willing to give up for security? Or vice versa? And this issue of biometrics, don’t people with iPhones use the Touch ID? Isn’t that essentially a biometric data collected by Apple?" he asked.

Meanwhile, enrolment under the Aadhaar project is continuing across the country. Prime Minister Narendra Modi has asked state governments to complete the enrolment by December and said he would personally review the progress every month. As of now, 920 million Indian residents have been allotted Aadhaar numbers.

The Supreme Court’s interim order did not stop the Unique Identification Authority of India, which is implementing the Aadhaar project, from fresh enrolments, but asked it to widely publicize through media that “it is not mandatory for a citizen to obtain an Aadhaar card".

Saurabh Kumar and Shreeja Sen contributed to this story.

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