The Aadhaar card scheme was initially launched by the Government of India vide notification dated January 28, 2010. Later on The National Identification Authority of India Bill, 2010 was introduced in the Parliament but the same was later withdrawn. In 2012, a writ petition was filed Justice (Retd.) KS Puttaswamy a retired judge of the Karnataka High Court. Several subsequent Aadhaar related writ petitions before Supreme Court, and before various High Courts have been transferred and, tagged with this Puttaswamy petition.
30 December 2012
Writ Petition (C) No. 494 of 2012 – Justice KS Puttaswamy (Retd) & Anr v. Union of India & Ors. is listed for the first time before the Supreme Court of India before a bench comprising Chief Justice of India Altamas Kabir and Justice J Chelameswar. Petitioners Justice Puttaswamy and advocate Parvesh Khanna are represented through senior counsel Anil Divan. Divan questions the legality of the grant of Aadhaar card while the 2010 bill was pending before Parliament and its standing committee (report) had rejected the bill.
With respect to the mechanism, petition raised the question:
Can executive power be used in a manner so as to make legislative power redundant or in other words, whether by the exercise of executive power, the executive can circumvent Parliament?
With respect to the issue of privacy, petition claimed:
Collecting biometric information as a condition precedent for the issue of Aadhaar card is an invasion of right to privacy of citizens and thereby this can only be done by a law enacted by Parliament and hence, beyond the executive power.
When the bench said Parliament could debate the standing committee’s report and decide not to accept it, Divan said this could happen only through a informed debate on the floor of Parliament and the government could not have pre-empted the outcome of the debate through an executive action. (via Times of India) He further argued that the implementation of the scheme when the bill was pending in Parliament was a matter of great constitutional importance. The scheme impinged on the right to privacy of individuals, as the confidentiality and security of biometric information private agencies collected were not ensured. (via The Hindu)
Bench issued issued notice to the Union of India on the petition and also on the interim application for a stay on the implementation of the scheme.
In the meanwhile, no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Adhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.
Supreme Court impleades all the States and Union Territories as parties in the litigation and orders for the interim order to continue. The bench comprising of Justices BS Chauhan and SA Bobde passed the following order:
After hearing the matter at length, we are of the view that all the States and Union Territories have to be impleaded as respondents to give effective directions. In view thereof notice be issued to all the States and Union Territories through standing counsel.
…
Interim order to continue, in the meantime.
February, 2014
Arguments are held in the matter. Senior counsel Shyam Divan argues for some of the petitioners.
July 21, 2015
Arguments resume in the case. Senior counsel Shyam Divan resumes his arguments and continues for the entire day.
Attorney General Mukul Rohatgi and senior counsel KK Venugopal submitted their arguments in support of Aadhaar. Thereafter senior counsel Shyam Divan resumes his arguments and continues for the entire day.
Attorney General submitted before the Bench that Constitution of India does not envisage privacy as a fundamental right. He submitted that the constitution benches of the Court did not interpret article 21 of the Constitution to include right to privacy as a fundamental right but the same was done only by a bench of two judges. Pointing to the wide divergence of views on privacy in the past verdicts of the apex court, Rohatgi urged the three-judge bench hearing the case to refer the petitions challenging Aadhaar scheme to a Constitution bench of five judges. He submitted:
Constitution makers did not intend to make right to privacy a fundamental right.
July 23, 2015
Senior counsels Shyam Divan and Gopal Subramanium made submissions on behalf of the Petitioners.
July 28, 2015 – July 30, 2015
Senior counsel Gopal Subramanium made his submissions on behalf of the Petitioners for three days.
August 5, 2015
Senior counsel Gopal Subramanium made brief submissions for 20 minutes. Thereafter Attorney General Mukul Rohatgi made his submissions in rejoinder.
August 6, 2015
Attorney General Mukul Rohatgi continued his submissions in rejoinder. He submitted:
Your lordships will have to determine the contours of privacy. Going by these judgments, if the contours of privacy are not clear, then it should be decided by a larger bench.
Rohatgi relied upon a judgment of 1964 (Kharak Singh) which he said has been wrongly interpreted for 40 years, as saying that there was no Fundamental Right of privacy. Later benches of smaller strengths could not have ignored this finding. Kharak Singh dealt with domiciliary visits and surveillance under the UP Police manual. (more on Medianama)
Bench reserved its order and adjourned for August 11, 2015.
August 11, 2015
Supreme Court bench of Justices Chelameswar, Bobde and Nagappan refers the matter to a Constitution Bench. It ordered:
12. We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.
13. Therefore, 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.
14. We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.
After the above order was pronounced, counsels for petitions sought interim orders. Later in the same day, bench passed further orders observing:
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 foodgrains, 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.
October 6, 2015
Union of India and several states governments and their agencies filed interlocutory applications before the Court feeling that Court’s order was acting as an impediment in their Aadhaar related goals and they sought an extension of the purposes for which Aadhaar can be used. Applications were heard by the three judge bench which had earlier pronounced the August 11 order. Bench however refused to grant any immediate relief in the applications and observed that it would be better that the applications are heard by the Constitution bench itself to which the entire batch of petitions challenging Aadhaar had been referred. Bench then asked the registry to place the matter before Chief Justice of India to pass the appropriate orders.
October 8, 2015
AG Rohatgi mentioned the matter before the CJI HL Dattu and informed the chief justice about the urgency of the issue as many government schemes were stuck on account of the court’s interim order. Hinting at the constitution of the bench, CJI observed:
Question is do I have nine judges to spare? What happens to other matters? Please understand my problem. You will know by tomorrow evening. (Live Mint)
A five judge Constitution Bench of the Supreme Court comprising of Chief Justice HL Dattu and Justices MY Eqbal, C Nagappan, Arun Mishra and Amitava Roy heard the matter. Attorney General Mukul Rohatgi argued for the applicants seeking modification of order dated August 11, 2015 while senior counsel Gopal Subramaiam represented the original petitioners. After the arguments, bench agreed to modify the order to bring further services within the scope of Aadhaar. Bench ordered:
…we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employement Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Providend Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015.
8. Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest.
In January 2016, as per a circular issued by the Supreme Court, it appeared that the matters would be heard by a constitution bench. However the matters were not listed for hearing.
March 2016
Meanwhile, Parliament of India passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 as a money bill. Lok Sabha rejected five amendments which were made by Rajya Sabha which were introduced by INC MP Jairam Ramesh.
Arguing that privacy was not a fundamental right, Union Finance Minister Arun Jaitley told the Lok Sabha that the legislation’s primary objective was delivery of benefits, subsidies and services to the people. (more at The Hindu)
Act: The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016
Rajya Sabha MP Jairam Ramesh challenges the Aadhaar Act, 2016 claiming it to be “unconstitutional” for being passed as a money bill. Ramesh was represented by senior counsels P Chidambaram and Kapil Sibal. After hearing the arguments, bench comprising Chief Justice T.S. Thakur, and justices U.U. Lalit and R. Banumathi observed that they would like to hear the views of the Attorney General of India on the issue.
Ramesh’s petition is mentioned before the bench comprising of Chief Justice TS Thakur and Justice Anil R Dave. Bench ordered:
Post in the second week of February 2017 before an appropriate Bench.