Challenge to Aadhaar act: Is privacy basic right? Nine-judge Bench to decide

Challenge to Aadhaar act: A five-judge Constitution Bench, which met to examine if the Aadhaar Act violates a person’s right to privacy, realised that the court will have to first answer if right to privacy constitutes a fundamental right under the Constitution before it takes up the main question.

Written by ANANTHAKRISHNAN G | New Delhi | Updated: July 19, 2017 9:26 am
Aadhaar act, right to privacy, Aadhaar privacy, Aadhaar card Challenge to Aadhaar act: After an hour-long hearing, the Supreme Court bench, which also included Justices J Chelameswar, S A Bobde, S Abdul Nazeer and D Y Chandrachud, referred the question to a nine-judge Constitution Bench.

The Supreme Court decided Tuesday to set up a nine-judge bench to decide whether right to privacy can be declared a fundamental right under the Constitution. A five-judge Constitution Bench, headed by Chief Justice of India J S Khehar, which met to examine if the Aadhaar Act violates a person’s right to privacy, realised that the court will have to first answer if right to privacy constitutes a fundamental right under the Constitution before it takes up the main question.

After an hour-long hearing, the bench, which also included Justices J Chelameswar, S A Bobde, S Abdul Nazeer and D Y Chandrachud, referred the question to a nine-judge Constitution Bench. The larger bench will hear arguments on the point on Wednesday and its outcome will decide whether the five-judge bench will still have to adjudicate on the challenge to the Aadhaar Act.

The judges noted that two earlier judgements of the court — M P Sharma’s case in 1954 and Kharak Singh’s case in 1962 — had held that privacy was not a fundamental right. While the first was delivered by an eight-judge bench, the latter was decided by a six-judge bench.

“It is essential for us to determine whether there is a fundamental right to privacy in the Indian Constitution. Determination of the question would essentially entail whether the decisions in M P Sharma (case) by an eight-judge bench and Kharak Singh (case) by a six-judge bench that there is no such fundamental right is the correct expression of constitutional provisions,” the Bench recorded in its order.

“That needs to be settled. If not, we can’t go forward,” the CJI remarked.

Appearing for the Centre, Attorney General K K Venugopal said “our founding fathers have encompassed all rights. But consciously, this (right to privacy) is omitted”.

This was countered by Justice Chelameswar: “It is illogical to argue that our Constitution is devoid of right to privacy while common law identifies it. Textually it is correct today that there is no right to privacy in the Constitution. But even freedom of press is not expressly stated. This court has interpreted it.”

He also noted that some smaller benches of the court had in the past held that right to privacy was a fundamental right. Beside the challenge to the Aadhaar Act, the court is also seized of petitions questioning the government move to make the unique identity mandatory for availing benefits of social welfare schemes.

On June 9, a Division Bench of the Supreme Court had upheld the Centre’s decision making it compulsory for those filing Income Tax returns to furnish their Aadhaar numbers.

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  1. #
    #AADHAARFAIL
    Jul 28, 2017 at 4:07 pm
    Aadhaar product is SEVEN years old, authentication still fails for "Half Billion" indians, millions of honest tax payers are unable to link aadhaar with PAN, UAN, etc. #AADHAAR's right place is in dust bin, it has wasted billions of dollars of tax payers money. When your fingerprint gets stolen, printed and used for aadhaar pay, cloning SIM and changing bank password using OTP, your aadhaar devotion will vanish. Jai Hind. 1. 25 lakh families in Rajasthan are unable to withdraw ration even after seeding #AADHAARFAIL with their ration card. 2. #AADHAAR authentication does not work for half billion Indians. 3. AADHAAR authentication does not work even after updating bio-metrics and waiting for 90 days 4. AADHAAR bio-metrics can be stolen, printed and used for #AADHAAR pay 5. #AADHAAR does not work for NRIs, people outside India 6. AADHAR can not be generated if a person's fingerprint matches with someone else's with 60 percentage probability. 7. Rogue government can deactivate #AADHAAR
    Reply
    1. #
      #AADHAARFAIL
      Jul 21, 2017 at 11:18 am
      When your fingerprint gets stolen, printed and used for aadhaar pay, cloning SIM and changing bank password using OTP, your aadhaar devotion will vanish. Jai Hind. 1. 25 lakh families in Rajasthan are unable to withdraw ration even after seeding #AADHAARFAIL with their ration card. 2. #AADHAAR authentication does not work for half billion Indians. 3. AADHAAR authentication does not work even after updating bio-metrics and waiting for 90 days 4. AADHAAR bio-metrics can be stolen, printed and used for #AADHAAR pay 5. #AADHAAR does not work for NRIs, people outside India 6. AADHAR can not be generated if a person's fingerprint matches with someone else's with 60 percentage probability. 7. Rogue government can deactivate your #AADHAAR blocking ur gas, electricity, mobile, bank account 8. AADHAAR works for millions of illegals staying in India 9. AADHAAR is blocking subsidies for millions of legitimate people 10. Take 10 lakh insurance for each #AADHAAR failure case/delete
      Reply
      1. #
        #AADHAARFAIL
        Jul 21, 2017 at 11:15 am
        When your fingerprint gets stolen, printed and used for aadhaar pay, cloning SIM and changing bank password using OTP, your aadhaar devotion will vanish. Jai Hind. 1. 25 lakh families in Rajasthan are unable to withdraw ration even after seeding #AADHAARFAIL with their ration card. 2. #AADHAAR authentication does not work for half billion Indians. 3. AADHAAR authentication does not work even after updating bio-metrics and waiting for 90 days 4. AADHAAR bio-metrics can be stolen, printed and used for #AADHAAR pay 5. #AADHAAR does not work for NRIs, people outside India 6. AADHAR can not be generated if a person's fingerprint matches with someone else's with 60 percentage probability. 7. Rogue government can deactivate your #AADHAAR blocking ur gas, electricity, mobile, bank account 8. AADHAAR works for millions of illegals staying in India 9. AADHAAR is blocking subsidies for millions of legitimate people 10. Take 10 lakh insurance for each #AADHAAR failure case/delete
        Reply
        1. S
          S C Tiwari
          Jul 20, 2017 at 2:20 pm
          The learned lawyers and Honorable judges are trying to define privacy. To put mildly the discussions are very superficial: there is no private part of a body, the whole body is owned by an individual. It is one's choice what to share with others or make public not just the parts of the body but even the conversations and feelings. Government cannot violate this natural right it is basic to liberty.
          Reply
          1. P
            Pankaj
            Jul 19, 2017 at 2:44 pm
            If the question is so fundamental then how can Aadhar be allowed to be compulsory while judges are debating the issue . This is a diversion. When the complaint is about intimidation you first start discussion on the motive ???
            Reply
            1. S
              S C Tiwari
              Jul 19, 2017 at 2:38 pm
              The right to privacy is neither a luxury nor State/Government granted right. Privacy right is a birth right guaranteed by the Principle of Natural Justice that goes beyond any man-made Cons utional Rights. No Government Agency could be allowed to infringe on this right. I submit that purely on technicalities and legal interpretations though it may be true that “During the hearing, Mr. Venugopal highlighted two judgments of the court — M.P. Sharma and Kharak Singh of 1954 and 1963, respectively, both of which had held that Article 21of the Cons ution, including the right to privacy, was subject to reasonable restrictions.” (News Report), one must ponder over deeper philosophical issues Let me briefly discuss the nature of the Fundamental Rights enshrined in the Cons ution. Already these are restricted ones as compared to the Natural Rights that come with the birth of an individual.
              Reply
              1. D
                dex
                Jul 19, 2017 at 1:44 pm
                if privacy is NOT a basic right , do i have the right to take photos of your mom and wife ? Since national security is paramount , they must also subject themselves to 24x7 surveillance in the interests of the nation .
                Reply
                1. #
                  #AADHAARFAIL
                  Jul 21, 2017 at 11:16 am
                  When your fingerprint gets stolen, printed and used for aadhaar pay, cloning SIM and changing bank password using OTP, your aadhaar devotion will vanish. Jai Hind. 1. 25 lakh families in Rajasthan are unable to withdraw ration even after seeding #AADHAARFAIL with their ration card. 2. #AADHAAR authentication does not work for half billion Indians. 3. AADHAAR authentication does not work even after updating bio-metrics and waiting for 90 days 4. AADHAAR bio-metrics can be stolen, printed and used for #AADHAAR pay 5. #AADHAAR does not work for NRIs, people outside India 6. AADHAR can not be generated if a person's fingerprint matches with someone else's with 60 percentage probability. 7. Rogue government can deactivate your #AADHAAR blocking ur gas, electricity, mobile, bank account 8. AADHAAR works for millions of illegals staying in India 9. AADHAAR is blocking subsidies for millions of legitimate people 10. Take 10 lakh insurance for each #AADHAAR failure case/delete
                  Reply
                2. S
                  Srinivas Prusty
                  Jul 19, 2017 at 1:42 pm
                  Privacy cannot a fundamental right since this will prevent law enforcement agencies in the investigation.
                  Reply
                  1. D
                    dex
                    Jul 19, 2017 at 1:49 pm
                    I agree your wife and mother do not have any right to privacy . What if have they some bad intentions or intend to commit some anti-national acts ? they must subject themselves to 24x7 surveillance in the interests of National Security .
                    Reply
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