SC: Aadhar not mandatory & Constitution bench to consider the right to privacy question

By Pushan Dwivedi and Joshita Pai

Highlights from the Court’s ruling

The Supreme Court bench constituting J. Chelameswar, S.A. Bobde and C. Nagappan has decided to refer the challenges to the Aadhar program to a constitution bench, especially to determine the existence of a right to privacy as a fundamental right.

The Apex Court passed an interim order directing the government to publish in electronic and print media that the enrollment is not mandatory. It also made it very clear that the production of the Aadhar card cannot be made compulsory for essential services. With respect to the sharing of personal information, the Court has ordered a strict non-disclosure of information unless the information is sought through a court order for the purpose of a criminal investigation. The purpose of Aadhar has been limited to the Public Distribution System including distribution of food grains and kerosene only.

Arguments in court

Advocate Shyam Divan, appearing for the petitioners, asked for interim relief and for directions to suspend further Aadhar enrollments, prohibit commercial use of Aadhar database, and to direct the government to telecast advertisements to the effect the Aadhar is not mandatory. He based his arguments on the notable absence of any government officer supervising the process and the dearth of statutory framework monitoring the program.

The Attorney General rebutting the plea of suspension of further enrollments insisted that the balance of probabilities have shifted in favour of the government since ninety one percent of the adult population has already been enrolled. He dismissed the privacy concerns relating to the use of database stating that the petitioners stating privacy qualms do not represent the majority of the population. He also argued that the purpose of issuing Aadhar cards is to provide social benefits to people and the program is not built with the aim of carrying surveillance. On the question of making it clear that Aadhar is not mandatory, the AG affirmed that the government is willing to advertise to the public that the enrollment is not mandatory.

There is no data available verifying the number of enrolled citizens. Soli Sorabjee remarked that “there are eight million people who have enrolled that are not to be found in the Aadhar database” His line of arguments primarily focused on the absence of any statutory system monitoring it.

A copy of the interim order can be found here: Aadhar Interim Order

(Pushan Dwivedi and Joshita Pai are Research Fellows at the Centre)

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3 thoughts on “SC: Aadhar not mandatory & Constitution bench to consider the right to privacy question

  1. Pingback: Supreme Court refers clarifications on Aadhar to the larger bench | Centre for Communication Governance at National Law University, Delhi

  2. Pingback: Public Safety and Private Phone Calls: The Recent Railway Order | Centre for Communication Governance at National Law University, Delhi

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