SC refers Aadhar card matter to Constitution Bench

The Supreme Court on Tuesday referred to a Constitution Bench a batch of petitions challenging the Centre’s ambitious scheme to provide Aadhar card to all citizens and decide whether right to privacy is a fundamental right.

Allowing the Centre’s plea, a three-judge bench comprising Justices J Chelameswar, S A Bobde and C Nagappan, framed various questions, including as to whether right to privacy is a fundamental right, to be decided by the larger Constitution Bench.

“If yes, then what would be contours of the right to privacy,” the apex court said while referring the matter to Chief Justice H L Dattu for setting up the larger bench.

Attorney General Mukul Rohatgi, appearing for the Centre, had earlier said that the matters requires elaborate debate and an authoritative pronouncement in view of the fact that there have been inconsistent decisions as to whether right to privacy is a fundamental right.

He had cited two judgments, pronounced by six and eight-judge benches, which had held that right to privacy is not a fundamental right. Subsequently, smaller benches had held contrary view and, hence this matter needed to be decided by a larger bench, AG had said.

“Whether right to privacy is a fundamental right guaranteed under Part III of the Constitution of India, in the light of express ratio to the contrary by an eight-judge bench in M P Sharma case and also by a six-judge bench of this court in Kharak Singh’s case” has to be decided, he had said.

Earlier, the Centre had sought transfer of pleas against Aadhar to a larger bench, saying that a two-judge or a three-judge bench cannot decide it.

Referring to pronouncements made in historic cases like A K Gopalan, Maneka Gandhi and bank nationalisation, the top law officer had said that inconsistencies with regard to interpretation of certain fundamental rights can only be “squared up” by a larger bench.

Earlier, the government had opposed a plea seeking initiation of contempt proceedings against it, Reserve Bank of India and others for allegedly insisting on Aadhar cards to grant benefits of various schemes to citizens, saying it was not mandatory.

In pursuance of earlier orders, the Centre has conveyed to states and authorities concerned not to make Aadhar cards, issued by Unique Identification Authority of India, mandatory for availing various schemes, Additional Solicitor General Pinky Anand had told the court.

The bench is hearing a batch of pleas against decisions of some states to make Aadhar cards compulsory for a range of activities including salary, provident fund disbursal, marriage and property registration.

The government had also said that persons, having Aadhar cards, were being asked to provide it to authorities but this was optional.

Senior advocate Gopal Subramanium, appearing for Mathew Thomas, one of the PIL petitioners, had filed an application seeking initiation of contempt proceedings against the Centre and others, including RBI, and the Election Commission.

He had alleged that the government and others were in violation of earlier orders that had said that no person should be denied any benefit or suffer for not having Aadhar cards. 

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