Thursday’s judgment on the right to privacy by a nine-judge Bench of the Supreme Court is bound to have a crucial bearing in the Aadhaar issue. The verdict on a reference by a five-judge Bench — currently considering the validity of Aadhaar — may play a decisive role on the fate of the scheme. Here is a timeline of the roller-coaster ride the issue has had in the Supreme Court in the past years:
July 21, 2015: A Bench of Justices J. Chelameswar, S.A. Bobde and C. Nagappan, on a batch of petitions challenging the Aadhaar scheme as a violation of privacy, clarifies that demands made by officials for Aadhaar card is in clear violation of the Supreme Court’s interim order of September 23, 2013 that Aadhaar is voluntary.
July 22, 2015:Centre argues that Constitution makers did not intend to make right to privacy a fundamental right. There is no fundamental right (to privacy) so these petitions (under article 32) should be dismissed. Right to privacy is not absolute. It is subject to restrictions in public interest.
August 6, 2015: The three-judge Bench reserves its order on the petitions. The petitions have challenged the Aadhaar card project, with its bio-metric registration process and linkage to basic and essential subsidies, as a violation of the citizens’ right to privacy. Centre seeks a larger bench to answer questions of law, primarily whether privacy is a fundamental right guaranteed under the Constitution.
August 11, 2015: Three-judge Bench holds that “balance of interest” is better served if Aadhaar is made neither mandatory nor a condition for accessing benefits one is already entitled to. The court clarified that this interim order will be in vogue till a five-judge bench decide on the larger constitutional issue whether the Aadhaar scheme, and its biometric mode of registration, amounts to an intrusion into the privacy of a citizen.
October 7, 2015: The Supreme Court refers to a Constitution Bench the question whether a person can voluntarily shed his right to privacy by enrolling for Aadhaar to easily access government welfare services. The Bench does not modify its August 11, 2015 order restricting the use of Aadhaar cards to only public distribution system and LPG connections. Instead, it left the order open for the Constitution Bench to consider it and take a call.
October 8, 2015: The Supreme Court under then Chief Justice of India H.L. Dattu decides to set up another Constitution Bench to re-look the question in the light of raging controversy that the Aadhaar card scheme is an invasion into citizen’s privacy. Hearing is scheduled for October 15, 2015.
October 15, 2015:The Supreme Court extends the voluntary use of Aadhaar card to Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), all types of pensions schemes, employee provident fund and the Prime Minister Jan Dhan Yojana. The five-judge Constitution Bench led by Chief Justice of India H.L. Dattu says the purely voluntary nature of the use of Aadhaar card to access public service will continue till the court takes a final decision on whether Aadhaar scheme is an invasion into the right to privacy of the citizen.
April 25, 2016:The passage of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 on March 11, 2016 comes under SC scanner after parliamentarian Jairam Ramesh challenges its introduction as a Money Bill as “malafide and brazen” .
March 27, 2017: Chief Justice of India J.S. Khehar orally observes that there is no fault with the government’s choice to make Aadhaar mandatory for “non-welfare” activities like opening a bank account or filing Income Tax returns or applying for a mobile connection. The Lok Sabha’s recently-passed Finance Bill made Aadhaar mandatory for filing tax returns and getting a permanent account number (PAN).
April 27, 2017: Senior advocate Shyam Divan submits before an SC Bench of Justices A.K. Sikri and Ashok Bhushan that a newly inserted Section 139AA in the Income Tax Act, which mandates the linking of Aadhaar with PAN, is a “Faustian bargain”. Centre counters that taking fingerprints and iris impressions for Aadhaar is not an invasion of a citizen’s body as the right of a person to his own body is not absolute.
May 19, 2017: SC agrees to hear petition filed by several persons, including former NCPCR chairperson and Magsaysay winner Shanta Sinha, against 17 government notifications allegedly making Aadhaar mandatory to access welfare schemes and benefits after June 30, 2017
June 9, 2017: SC upholds Section 139AA of the Income Tax Act.
July 12, 2017: After goading by Justice Chelameswar, senior advocate Shyam Divan and Attorney-General K.K. Venugopal make a joint mentioning before by Chief Justice of India J.S. Khehar for the early setting up of a five-judge Constitution Bench to decide a bunch of petitions challenging the constitutionality of the Aadhaar scheme, primarily whether the scheme which requires the parting of biometric details of citizens to access welfare and benefits, is a violation of the right to privacy. Chief Justice agrees and sets the date of hearing as July 18.
July 18, 2017: A five-judge Bench of Chief Justice J.S. Khehar, Justices Chelameswar, Bobde, D.Y. Chandrachud and S. Abdul Nazeer decides that a nine-judge Bench of the Supreme Court should first decide the question whether privacy is a fundamental right and part of the basic structure of the Indian Constitution. Two judgments of the Supreme Court — the M.P. Sharma case verdict pronounced by an eight-judge Bench shortly after the Indian Constitution came into force in 1950 and the Kharak Singh case verdict of 1962 by a six-judge Bench — had dominated the judicial dialogue on privacy since Independence. Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right. To overcome these two precedents, a numerically superior Bench of nine judges is required. Schedules hearing for July 19 before a nine-judge Bench.
July 19:On the first day of hearing the reference , the nine-judge Bench of Chief Justice J.S. Khehar, Justices Chelameswar, Bobde, R.K. Agrawal, Rohinton F. Nariman, Abhay Manohar Sapre, Chandrachud, Sanjay Kishan Kaul and Nazeer orally observes that privacy is not absolute and we now live in a world of ‘big data’. The Unique Identification Authority of India (UIDAI) informs that the Centre has constituted a committee of experts led by former Supreme Court judge, Justice B.N. Srikrishna to identify “key data protection issues” and suggest a draft data protection Bill.
August 2, 2017: The nine-judge Bench reserves the reference for judgment while strongly pitching for the framing of “overarching” guidelines to protect private information in public domain, said there was a need to “maintain the core of privacy” . The top lawyers who argued in the marathon hearings include Attorney General K.K. Venugopal, senior advocates Soli Sorabjee, Kapil Sibal, Gopal Subramanium, Shyam Divan, Arvind Dattar, Anand Grover, C.A. Sundaram, Rakesh Dwivedi, Additional Solicitor General Tushar Mehta, Sajan Poovayya, advocates Vipin Nair, Arghaya Sengupta and Gopal Sankaranarayanan.
August 24, 2017: The nine-judge Constitution Bench rules that right to privacy is “intrinsic to life and liberty” and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution.