While the restriction on linking of Aadhaar to the government’s ambitious schemes has put the Centre in a spot, it has also left the Chief Justice of India anxious over the need to get nine judges together to hear the contentious case.
“The question is, do I have nine judges to spare? How do I spare nine judges? What happens to the other pending matters then? Will I be wasting my other judges by asking them to sit only for chamber hearing matters?,” said Chief Justice H L Dattu on Thursday.
Later in the evening, a notification announced the setting up of a constitution bench that will hear the case on October 14. But it did not specify the number of judges on the bench.
A bunch of senior lawyers, including Attorney General Mukul Rohatgi, Harish Salve, Pinky Anand and Jayant Bhushan, had showed up before the CJI, asking him to urgently constitute a proper bench to take up the matters related to Aadhaar. The lawyers represented the Centre, Unique Identification Authority of India (UIDAI), Reserve Bank of India and various government regulators for securities, insurance, telecom and pension.
The “urgency” was triggered by Wednesday’s order by a three-judge bench that refused to modify a directive restricting Aadhaar’s use to public distribution system (PDS) and LPG subsidy.
Dashing the government’s hopes of linking Aadhaar with Digital India initiative, and services like banking and telecom, the bench had declined to alter its August 11 order till a Constitution Bench looked into the issue relating to the right to privacy involved in collection of biometrics for Aadhaar cards.
On Thursday, Rohatgi, along with other lawyers, mentioned the matter before CJI Dattu. “We intend to bring the delivery of social benefit schemes to the doorsteps of the poor people. But this is now being sought to be stalled by a few who are raising the right to privacy issues,” said Rohatgi.
Noting that the question of whether the right to privacy is a fundamental right or not was last dealt with by a bench comprising eight judges, Justice Dattu said: “Once it is an eight-judge bench judgment, how can it go to a bench comprising lesser number of judges. But the question is, do I have nine judges to spare?”
The CJI further added: “Even today two judges are on leave and their brother judges are taking up matters in chamber. If we constitute a nine-judge bench, I will have to make other judges sit in chamber too. I will be wasting my judges by doing it.”
After this, Rohatgi and Salve pleaded with the CJI to constitute a five-judge bench only for the purpose of hearing them on the modification of the interim order, adding that the constitutional questions regarding the right to privacy can be taken up by a nine-judge bench later.
But senior advocate Shyam Divan, who represented a petitioner challenging the validity of Aadhaar, told the CJI that the interim order cannot be modified without delving into the right to privacy issue. He opposed a plea to have the matter heard by a bench consisting of less than nine judges.