This week a 9 judge constitution bench of the Supreme Court of India is hearing arguments on whether there is a fundamental right to privacy under the Indian Constitution. In 2012, a petition was filed by Justice K. S. Puttaswamy (Retd) addressing the lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhaar. During the course of hearings between 2013 and 2015, the Supreme Court concluded that the matter holds importance to all the states and union territories to be impleaded as parties to the case and passed an order to this effect. The Court also stated on multiple occasions that the use of Aadhaar numbers cannot be made mandatory for delivery of welfare services by the state. On August 11, 2015 the Court reiterated this position and declared that Aadhaar card will be mandatory only for availing LPG and PDS services.
The principal opposition to Aadhaar in the Supreme Court during the course of these hearings was that the Aadhaar project violates individuals’ right to privacy. However, the Union of India responded to these arguments by stating that the Indian constitution does not provide for a fundamental right to privacy. Noting these arguments, the Supreme Court decided to refer this question of whether there is such a fundamental right to a larger constitution bench for determination.
Our detailed posts on this matter and the reference are available here.
The Attorney General’s arguments that there is no fundamental right to privacy in India rely on two judgments of the Supreme Court – M.P. Sharma v. Satish Chandra (decided by a 8 judge bench in 1954) and Kharak Singh v. State of U.P. (decided by a 6 judge bench in 1962).
Chinmayi’s paper available here discusses these two judgments, and the development and position of the right to privacy in India. The specific arguments made by the Attorney General in the Aadhaar case are addressed in her piece here.
While the constitution bench of the Supreme Court only sat to hear the matter yesterday (July 18, 2017), several other petitions were filed raising issues with different facets of the Government’s Aadhaar project.
In 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, was introduced and passed in the Lok Sabha as a money bill. Senior Member of Parliament Mr. Jairam Ramesh filed a petition questioning this move before the Supreme Court. We have previously written on whether the Supreme Court has the power to judicially review the constitutional validity of introducing the as a money bill.
Over the past few months, the Government has also issued a number of notifications mandating the use of Aadhaar for several services and benefits. Several of these notifications have also been challenged before the Supreme Court. Detailed updates on the proceedings before the Supreme Court in the recent challenge against the mandatory linking of Aadhaar numbers with PAN, and provision of Aadhaar numbers at the time of filing income taxes are available here.
In May this year, a fresh petition was filed requesting for a stay on eighteen Executive notifications, which made Aadhaar a mandatory condition to receive benefits under several welfare schemes. These include compensation schemes for victims of the Bhopal Gas tragedy, the Mid-day Meal scheme as well as Ujjawala, a scheme for the prevention and rehabilitation of victims of trafficking. While the Court was reluctant to issue a stay on separate occasions, the petitioners were allowed to request again that the constitution bench be set up immediately to hear the larger issues of privacy and validity of the Aadhaar project as set forth back in 2015.
As a result of this request, a 5 judge constitution bench was set up yesterday (July 18, 2017). This bench further referred the limited question of whether there is a fundamental right to privacy under the Indian Constitution to a 9 judge bench that is currently hearing arguments from petitioners and respondents. We will continue to provide updates on the hearings as they proceed here on the CCG Blog.
We have also written on a number of the privacy and security concerns with Aadhaar in multiple news media publications available here, here, here and here, as well as on our blog. Some of these posts are available here and here.
Any queries on these proceedings can be directed to us here.