While the Centre is in the process of making Aadhaar mandatory, a constitutional bench of the Apex Court on Tuesday heard matters related to the aspect of the right to privacy of Aadhaar. The five-judge bench which was headed by the Chief Justice of India was hearing a petition which challenged government’s move to make Aadhaar mandatory for various public welfare schemes, jointly mentioned the matter before the bench. The bench comprised of Chief Justice of India J. S Khehar, Justice Chelameswar, Justice Chandrachud, Justice Nazeer and Justice Bobde.
As the hearing proceeded, the Attorney General said that there is a common law right to privacy in India, but it is neither expressly found in the Constitution, nor is it implied. Citing the Kharak Singh case that held that privacy was not a “guaranteed right” under the Constitution, Justice Chandrachud said “Kharak Singh talked about surveillance which was covered under Article 19 (Freedom of movement). Privacy was an ancillary issue.”
Quoting the issue of 1962 judgment of the Supreme Court in the Kharak Singh case, the bench said that “each freedom has different dimensions.”
It was suggested by the Attorney General that to establish whether Aadhaar is a matter of privacy, it must refer the case to a larger bench. On AG’s suggestion, the CJI declared that “tomorrow, nine judges will decide whether the right to privacy is a fundamental right or not.”
“We will give the Petitioners one hour and you for two hours. This can be done tomorrow.”, he added.
“It has become essential for us to determine whether there is any fundamental right to privacy under the Indian Constitution. The determination of this question requires us to determine whether the judgments in MP Sharma and Kharak Singh are correct. The issue deserves to be placed before a nine judge Constitution Bench tomorrow.”, declared the CJI.
Notably, the Aadhaar project is the world’s largest identification number project and is creating a database of biometric (photographs, fingerprints and iris scans) and demographic (name, date of birth and address) information.