Aadhaar; Constitution Bench will determine the existence of a 'Right to Privacy' as a Fundamental Right [Read the order]
(The Centre for Communication Governance at National Law University, Delhi is posting daily reports of the arguments in the Aadhaar matter).
Highlights from the Court’s ruling
The Supreme Court bench constituting Justices 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 Court passed an order directing the government to publish on electronic forms 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 card is not to be used for any purpose except to obtain food grains and kerosene.
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.
Pushan Dwivedi and Joshita Pai are Research Fellows at the Centre for Communication Governance at National Law University Delhi
We would like to thank Chinmayi Arun , Research Director of the Centre for Communication Governance.
Read the order here.