Supreme Court sets up constitution bench to hear Aadhaar privacy issues

The article by Priyanka Mittal was published in Livemint on July 12, 2017. Sunil Abraham was quoted.

A five-judge constitution bench will hear arguments on 18-19 July as to whether Indian citizens have the right to privacy, and whether the Aadhaar unique identity project breaches the right.

Chief Justice of India (CJI) J.S. Khehar on Wednesday set the dates for the hearing by the constitution bench, which will decide whether the issue should be heard by a larger bench.

Should the five-judge bench decide to rule on the case itself and not refer it to a larger bench, it will decide the future of Aadhaar, which has become the backbone of government welfare programmes, the tax administration network and online financial transactions.

This will be based on whether the right to privacy is a fundamental right of Indian citizens.

Privacy rights activists argue that personal data gathered under the Aadhaar programme, aimed at giving a unique 12-digit identity number to every Indian, is vulnerable to abuse. Then attorney general Mukul Rohatgi told the Supreme Court in 2015 that Indian citizens don’t have a fundamental right to privacy under the Indian Constitution—an argument he repeated subsequently.

“In the two-day hearing, the court is not going to decide the full issue of privacy,” said Alok Prasanna Kumar, a lawyer and visiting fellow at think tank Vidhi Centre for Legal Policy, explaining how the Constitution bench is likely to proceed. “They are going to take a call on whether, in light of precedents, there is a need to refer the issue to a larger bench. There are past judgements and the court will have to look at the scope of privacy under each to decide the number of judges.”

He added: “If the five-judge bench agrees with the precedents, then it would continue to address the angle of privacy; if not, then it would be referred back to the CJI to constitute a larger bench of nine judges.”

All cases related to Aadhaar, including the right to privacy, will be heard by the constitution bench; the court decided to set up the constitution bench to hear the privacy case in August 2015.

The CJI’s decision came on a plea by advocate Shyam Divan, who has appeared in several cases opposing Aadhaar, and attorney general K.K. Venugopal seeking the speedy creation of a Constitution bench. It came a week after justice J. Chelameswar said that all matters related to Aadhaar should be addressed by a constitution bench.

“I see it as a step in the right direction. Personally, I hope that the privacy issue is heard by a five-judge bench as against a larger bench as that can bring more disagreement,” said Sunil Abraham, executive director of Bengaluru-based research think tank Centre for Internet and Society.

Last month, the Supreme Court court upheld the government’s decision to link Aadhaar with the permanent account number (PAN) for filing of income-tax returns but ruled that non-compliance with the law will carry no retrospective consequences.

Under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the unique identity number is mandatory only to receive social welfare benefits.