SC Constitution bench to hear privacy challenge on Aadhaar Act

New Delhi: The long pending issue of challenge to validity of the controversial Aadhaar Act, prima-facie whether the biometric details provided by citizens to access welfare and benefits is a violation of the right to privacy, will be heard from July 18 by a five-judge constitution bench.

A bench of Chief Justice Jagdish Singh Khehar and Justice D.Y. Chandrachud said on Wednesday this bench would hear the matter for two days.

Chief Justice Khehar agreed to the hearing by the constitution bench after senior counsel Shyam Divan and Attorney General K.K. Venugopal mentioned the matter for an early hearing.

The five-judge bench would examine the challenge to Aadhaar scheme with reference to 1954 decision of an eight-judge bench and 1964 decision of a six-judge bench - both holding that the right to privacy was not a fundamental right - and decide whether it required hearing by a bench of nine judges.

The question on the validity of Aadhaar scheme on the touchstone of whether privacy was fundamental right was referred to the constitution bench in August 2015.

The top court by its August 11, 2015, order had referred to the constitution bench challenge to the constitutional validity of the Aadhaar scheme on the account of conflicting pronouncements of top court on the nature of the right to privacy.

Divan had argued that Aadhaar was violative of right to privacy but the Central government contended that privacy was not a fundamental right, citing the 1954 and 1964 judgments.

However, from the mid-1970s, smaller benches of two or three judges had been ruling privacy as a fundamental right that can be read into the Constitution's Article 21, the government had noted.

In its August 11, 2015 order, the bench of Justice J. Chelameswar, Justice S.A.Bobde and Justice C. Nagappan had observed that "there appears to be certain amount of apparent unresolved contradiction in the law declared by this court" on the question of whether privacy was a fundamental right ensconced in Article 21 guaranteeing right to protection of life and personal liberty or was just a right.

A top court bench comprising Justice Chelameswar, Justice A.M. Khanwilkar and Justice Navin Sinha on July 7 favoured that the issue whether privacy was a mere right or fundamental right should be decided as it referred to the long history of the Aadhaar litigation and asked Divan and Attorney General K.K.Venugopal to mention the matter before the Chief Justice for setting up a larger bench.

Divan is appearing in Aadhaar matter since 2013, starting with appearing for former Karnataka High Court judge Justice K.S.Puttaswamy who had challenged Aadhaar's constitutional validity.

Later, the Aadhaar litigation was joined by National Commission for Protection of Child Rights' first Chairperson Shanta Sinha and feminist researcher Kalyani Sen Menon who too have challenged the scheme.