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The three judge Bench hearing the case, comprising Justices Jasti Chelameswar, Justice SA Bobde and Justice C Nagappan, took this decision thereby accepting the submission of Attorney General Mukul Rohatgi that the right to privacy as a fundamental right is still unsettled in law and requires to be decided by a larger Bench.
While the petitioners had contended that right to privacy is a facet of right to life under Article 21 and the same has been settled in various judgments of the Supreme Court, the Centre had taken the stance that the judgments in Kharak Singh v. State of UP and MP Sharma v. Satish Sharma categorically lay down that right to privacy is not a fundamental right and the said judgments have not been overruled.
Senior Advocates Shyam Divan and Gopal Subramanium had vociferously argued against this. Subramanium had also chided the government for failing to obey the direction of the court that Aadhar should not be insisted by any government agency until the case before the Supreme Court is finally decided.
Rohatgi had, however, contended that the judgments in Kharak Singh (six judges) and MP Sharma (eight judges) lay down that right to privacy is not a fundamental right. He argued that the said judgments cannot be considered as overruled by subsequent judgments holding to the contrary since the subsequent judgments were rendered by smaller Benches.
The Court agreed with the AG’s view despite Shyam Divan’s argument that MP Sharma’s case has no applicability in the current scenario since it deals with only Article 20(3) and not right to privacy as a fact of Article 21. It, therefore, held that,
“…in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.
We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.”
This is the second case in recent times where the Attorney General has argued for a larger Bench to decide the matter. In the NJAC challenge too, this prayer was made, though eventually the Court proceeded to hear the matter without pronouncing on the question of reference.
Update: In an interim order pronounced in the afternoon, the Court has reiterated that Aadhar will not be mandatory for availing any welfare schemes except PDS and LPG. The Court also directed the Centre to advertise this through print and electronic media. The following are the interim directions issued by the court:
1. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;
3. The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of food grains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;
4. The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.
ht to @mohitsingh8 for twitter updates.