"We are inclined to refer it to the larger constitutional bench," an apex court bench of Justice J. Chelameswar, Justice S.A. Bobde and Justice C. Nagappan observed as Attorney General Mukul Rohatgi said the challenge to Aadhaar was primarily on grounds of violation of privacy and there were divergent views of the apex court on it.
"Don't you think if you have divergence of views on right to privacy, should it not be referred to the five-judge bench," Justice Chelameswar asked senior counsel Shyam Divan, appearing for the main petitioner and former Karnataka High Court judge Justice K.S. Puttaswamy (retd).
Attorney General Mukul Rohatgi said an eight-judge bench and later a six-judge bench in two separate cases held that privacy was not a fundamental right, but in nearly 25 judgments subsequently by smaller benches privacy came to be recognised and cemented as part of the fundamental rights under Article 21.
Rohatgi said even the framers of the Constitution did not think of privacy as a fundamental right.
Urging the bench to refer the matter to the five-judge Constitution bench in the light of divergence of views emerging from different judgments, the Attorney General requested the apex court to see the interplay of the right of those seeking scrapping of the Aadhaar scheme with 700 million people whose subsidies and social welfare schemes benfits were dependent on the "foolproof Aadhaar scheme".
He said that some petitioners were demanding scrapping of some provisions of the Citizenship Act as they insisted on biometric tests.
Referring to other petitions before the court, challenging the Aadhaar Scheme, the Attorney General said it would impact the issuance of driving licences, passports, the National Population Register and other things that matter to the citizens even otherwise.
He said the scheme was necessary as the country was battling the problem of illegal migrants.
Rohatgi's plea was supported by senior counsel K.K. Venugopal, who appeared for the Centre for Civil Societies, a group of intellectuals and thinkers.
Appearing for Justice Puttaswamy (retd), senior counsel Shyam Divan told the court that with the passage of time there was growth and evolution of law, ideas and attitudes.
"Privacy is core to the civilisation. It is a pillar of society," he contended.
Trying to drive home the point of judicial discipline in the growth of law, Justice Chelameswar said, "Individually, we are not against the growth and evolution of law. But it has to be in accordance with judicial discipline." Thereby, he pointed out that it were eight-judge and later six-judge benches that held that privacy was not a fundamental right.
Divan countered the Attorney General by saying, "If the union is not contesting the position that Indians have a right to privacy under the fundamental rights of the Constitution, where is the occasion to refer the challenge to the Aadhaar scheme to a five-judge bench."
Justice Puttaswamy moved the court in 2012 and contended that the entire Aadhaar scheme was unconstitutional as the biometric data collected under it was an incursion and transgression of individual privacy.