Supreme Court Sets Up Constitution Bench to Hear Aadhaar Privacy Issues

Supreme Court Sets Up Constitution Bench to Hear Aadhaar Privacy Issues is a Mint news report by Priyanka Mittal published on 13 July 2017. The piece covers Chief Justice of India J.S. Khehar’s decision to schedule a five-judge constitution bench hearing on 18–19 July to determine whether the right to privacy is a fundamental right of Indian citizens, and whether the Aadhaar unique identity project breaches it. Sunil Abraham welcomes the development, expressing a preference for the issue to be decided by the five-judge bench rather than referred to a larger one.

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Article Details

📰 Published in:: Mint
📅 Date:: 13 July 2017
👤 Author:: Priyanka Mittal
📄 Type:: News Report
📰 Newspaper Link:: Read Online

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New Delhi: 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 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.

Context and Background

This article was published on 13 July 2017, five days before the scheduled two-day constitution bench hearing on 18–19 July. The piece sits at a pivotal moment in the long-running legal challenge to Aadhaar: the question of whether privacy is a fundamental right under the Indian Constitution had been contested by the government since at least 2015, when then attorney general Mukul Rohatgi made the striking argument before the Supreme Court that no such right exists. That position was widely criticised by legal scholars and civil society, and the decision to convene a constitution bench to examine it reflected the court’s recognition that the privacy question required authoritative clarification.

The procedural question the bench was set to address first — whether to decide the privacy issue itself or refer it to a larger nine-judge bench — would determine the scope and sequence of the constitutional examination of Aadhaar.

Sunil Abraham’s comment reflects a procedural preference rather than a substantive position on the merits of Aadhaar. He frames the question in terms of bench size and deliberative dynamics rather than the eventual outcome of the litigation. The closing paragraphs of the article situate the hearing within the broader Aadhaar legal landscape: the PAN-linking ruling from the previous month had already shown the court was willing to uphold government use of Aadhaar while simultaneously placing limits on the consequences of non-compliance —illustrating the court’s ongoing engagement with the scope and limits of Aadhaar’s mandatory use.