The central government on Thursday urged the Supreme Court to constitute a constitution bench to hear its plea to allow use of Aadhaar card for the disbursal of benefits under various social welfare schemes and also in banking and financial transactions.
As Attorney General Mukul Rohatgi asked the bench of Chief Justice H.L. Dattu and Justice Arun Mishra to constitute a larger bench to hear their plea for “clarification/modification” of the August 11 order, the court said it was “very difficult” to constitute a larger bench for an early hearing.
Chief Justice Dattu said that it was difficult to spare nine judges to hear the plea as it would adversely affect the working of other courts. He said he would consider the plea by Friday evening.
The attorney general mentioned the matter after the bench of Justice J. Chelameswar, Justice S.A. Bobde and Justice C. Nagappan on Wednesday referred a batch of applications, by the government and other agencies, seeking use of Aadhaar card on a voluntary basis, to a larger bench as it refused to relax its August 11 interim order.
The apex court had restricted the use of Aadhaar card for distribution of foodgrain under PDS, and supply of kerosene oil and cooking gas only.
By its August 11 order, the court referred to a larger bench the question whether right to privacy was a fundamental right – an issue rooted in the conflicting judgments of the apex court. The question whether right to privacy is a fundamental right is core to the challenge to Adhaar scheme.
The order had come on a batch of petitions including by Karnataka High Court’s former judge, Justice K.S. Puttaswamy, who contended that the biometric data that was being collected for the issuance of Aadhaar card violated the fundamental right to privacy of the citizens as personal data was not protected, and was vulnerable to exposure and misuse.
The apex court by its 1954 judgment by a bench of eight judges and later in 1964 by a bench of six judges had held that the right to privacy was not a fundamental right but from 1975 onwards, smaller two or three judges’ bench elevated the right to privacy as a fundamental right. Under the judicial discipline, unless the 1954 verdict holding that right to privacy was not a fundamental right is overturned by a still larger bench of nine or more judges, it would remain binding on the benches of lesser strength and across the country.
However, the position taken by the apex court way back in 1954 and reaffirmed in 1964 appears to be inappropriate more than five decades down the line as senior counsel Harish Salve appearing for Gujarat government seeking the relaxation of August 11 order had told the court on September 29, that in 2015, it could not be anyone’s case that privacy was not a right of a citizen.
“2015 may be too late to argue that privacy was not a right,” Salve had told the court.
Apparently the generally-held presumption that privacy is a right found an echo in the apex court’s August 11 order, which while referring to the conflicting positions on the status of right to privacy as a fundamental right, said: “If the observations made (in 1954 and 1964) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the constitution of India and more particularly right to liberty under article 21 would be denuded of vigour and vitality.”