“It has become essential for us to determine whether there is any fundamental right to privacy under the Indian Constitution.” 

The Chief Justice of India (CJI), Justice JS Khehar said this after hearing the arguments on petitions challenging the constitutional validity of Aadhaar in the Supreme Court yesterday. Khehar was part of a five-judge constitution bench that was formed after a hiatus of almost two years. When the matter of Aadhaar was presented before the bench yesterday, they referred a “limited” point of the argument to a larger bench comprising of nine judges. 

This ‘limited’ point being— whether the right to privacy is a fundamental right guaranteed by the Constitution of India, described under Part III. The SC’s press release on the matter states:

The recently appointed Attorney General, KK Venugopal, argued that citizens had no fundamental right to privacy. According to him, the framers of the Constitution deliberately chose not to give such a right to the citizens of India. He cited the judgements of Kharak Singh vs State of UP from 1962 and MP Sharma & other vs Satish Chandra from 1954 that concluded that the Constitution did not guarantee the fundamental right to privacy.

Once the nine-judge bench comprising of CJI, Justice J Chelameswar, Justice SA Bobde, Justice RK Agarwal, Justice Fali Nariman, Justice Abhay Manohar Sapre, Justice DY Chandrachud, Justice Sanjay Kishan Kaul and Justice Abdul Nazeer hears the arguments of the petitioners and the A-G today, the petitions pertaining to Aadhaar will be heard by a smaller bench.

As for today, the bench will only hear the matter pertaining to the right to privacy.

But before the matter was referred to the nine judge bench, here is a brief history of why Aadhaar has been a point of discussion for almost a decade now.

The Aadhaar journey

The Aadhaar scheme was introduced in 2006, under the United Progressive Alliance (UPA) regime as a flagship programme of the Unique Identification Authority of India (UIDAI). While the scheme received a lot of flak from the then-opposition— the BJP and its allies— currently, it is being pushed through many routes by the government. 

However, one of the first legal challenges on Aadhaar and privacy dates back to 2012, when a former High Court Judge, Justice KS Puttaswamy, filed a petition in the Supreme Court. This case, along with 21 others, is still pending before the SC.

In the following two years [2013 and 2014], the SC, in two orders, stated that Aadhaar could not be made mandatory for availing social security schemes. One of the orders pertained to a case between UIDAI and the Central Bureau of Investigation. According to this story in the Deccan Herald, UIDAI contended sharing biometric data with the CBI for its investigation in a rape case in Goa. The UIDAI approached the SC challenging the order of the Bombay High Court and Goa Court asking UIDAI to share biometric details of the residents in the state. UIDAI argued that the order, if passed, would set a bad precedent. The SC ruled in favour of the UIDAI and directed the agency to not share any biometric data without the consent of those in the database.

Later, in August 2015, a three-judge bench of the SC held that Aadhaar would be a voluntary scheme until the apex court settled the pending matters and sought the formation of a Constitution Bench to hear the cases. When the bench was constituted in October 2015, the matter of privacy was referred to another bench [formed in July 2017] when then-A-G Mukul Rohatgi argued that the matter of the fundamental right to privacy needed to be settled first.

In March 2016, the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill was introduced in the Lok Sabha as the money bill and was later passed by the LS in its original form without inculcating recommendations from the Rajya Sabha. Subsequently, the bill was passed with the President’s consent and on March 26, the Aadhaar Act, 2016 was notified in the Gazette of India. A similar attempt was made by the UPA government in 2010, to push the National Identification Authority of India Bill, 2010, but it was rejected by the Standing Committee on Finance.

Soon, the Act went through several legal challenges. One of the most renowned cases was registered by then Rajya Sabha member Jairam Ramesh, who challenged the introduction of Aadhaar Act as money bill in 2016. While the matter is still subjudice, CJI had questioned Rohatgi, on why there was a need to introduce the Aadhaar Bill as a money bill. By definition, any money bill can bypass the Upper House and be passed solely by the members of the Lower House. 

Ever since the government has tried to push the Aadhaar scheme through many routes.

Mandatory-not-mandatory

Since January 2017, the number of schemes making Aadhaar mandatory have been increasing. MGNREGA, Employees’ Pension Scheme, Supplementary Nutrition Programme, Farmers Welfare Scheme, scholarship opportunities and several such schemes require the 12-digit Aadhaar number to avail these schemes. 

Recently, the SC gave a judgement on PAN-Aadhaar linkage and gave partial relief to those who don’t have an Aadhaar card yet. Aadhaar has also been made mandatory to open bank accounts. For those who seek treatment for tuberculosis? Yes, even for them. Aadhaar is mandatory if seeking government healthcare. 

With more and more schemes getting linked to Aadhaar, all eyes are now on the SC bench that would decide the constitutional validity of Aadhaar after the nine-judge bench hears the matter today in the apex court.

The author can be reached on Twitter at @shrutimenon10.