Constitution Bench may hear pleas.

Chief Justice of India (CJI) Dipak Misra on Wednesday informed the petitioners challenging the validity of Aadhaar scheme that their case from Thursday.

The announcement followed the issuance of a government notification amending the Prevention of Money-laundering (Maintenance of Records) Rules to discard the December 31, 2017 deadline for the linking of Aadhaar with bank accounts and PANs.

The notification, issued by the Department of Revenue of the Ministry of Finance , does not give any deadline for linking Aadhaar with banks accounts and PANs and leaves it open-ended, that is, until the government issues a notification in the future fixing a deadline.

In an urgent mentioning, one of the many done in the past few days, by the petitioners before the CJI Bench, Chief Justice Misra told senior advocate Shyam Divan and advocate Vipin Nair that “we will hear it tomorrow.”

A five-judge Constitution Bench, comprising the CJI, Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, is likely to hear the petitions. It will take up pleas for clarifications on and interim reliefs from deadlines issued.

The right to choice of existing Aadhaar holders who do not want to link their bank accounts may come up for a decision. Similarly, the issue of extension of deadline of linkage of mobile phones with Aadhaar would also be pleaded before the Constitution Bench. The present deadline is February 6, 2018 in this regard.

Last week, Attorney General of India K.K. Venugopal submitted before the court that the government would notify the extension of deadline for mandatory Aadhaar linking from December 31, 2017 to March 31, 2018.

This extension included 139 government subsidies, benefits or services, which are funded out of the Consolidated Fund of India as per Section 7 of the Aadhaar Act of 2016.

Mobile phone linkage extension

Mr. Venugopal had, however, said the extension of mobile phone linkage deadline would require a judicial order from the Supreme Court itself. This is because the government was complying with a February 6, 2017 order of the court in the Lok Niti Foundation case to tighten up verification process of mobile phone users through Aadhaar linkage, citing national security.

The Chief Justice had then indicated that it would be left to the Constitution Bench to give dates for the final hearing of the Aadhaar petitions.

Mr. Divan had pressed for dates in the first or second week of January 2018, immediately after the Christmas holidays. He had submitted that the government should promise that no coercive steps would be taken by it or its agencies on Aadhaar holders till the court takes a final decision on the validity of the Aadhaar scheme.

“If that is the case, nobody will produce it [Aadhaar]. We have said that those with Aadhaar do not mind producing their Aadhaar,” Mr. Venugopal had responded, willing to argue the question before the Constitution Bench.

Mr. Divan had said the government’s stand was increasingly ambiguous on the plight of the existing Aadhaar holders who do not want to link their Aadhaar. He had urged the court to address this issue immediately.

The Aadhaar petitions have been in the Supreme Court since 2014. The petitions have challenged Aadhaar as a violation of the fundamental right to privacy.

In October, the Centre joined forces with Mr. Divan for an early hearing of the Aadhaar cases. Mr. Venugopal then said that falsehoods have been spread about Aadhaar linking, including how Aadhaar is a must for CBSE students to appear in Class 10 and 12 exams. He also said a Constitution Bench may be set up to decide all the Aadhaar issues once and for all.

Justice Rohinton Nariman’s separate judgment

The decision to set up a Constitution Bench comes despite Justice Rohinton Nariman’s separate judgment in the nine-judge Bench declaring right to privacy as a fundamental right. Justice Nariman’s judgment had directed that the Aadhaar petitions to be posted for hearing before the ‘original’ three-judge Bench.

This ‘original’ Bench led by Justice J. Chelameswar had referred the petitions for hearing before a five-judge Bench, which had found it necessary to first decide whether privacy was a fundamental right or not before hearing the Aadhaar petitions. It had referred the legal question to a nine-judge Bench, which came out with the historic judgment in favour of the common man’s fundamental right to privacy against State intrusions.

The nine-judge Bench verdict has a crucial bearing on the Aadhaar petitions, which have argued that Aadhaar’s use of biometric details like fingerprints and iris scans violate bodily and informational privacy.

The petitioners argue that mandatory requirement of Aadhaar for these schemes “constrict rights and freedoms which a citizen has long been enjoying unless and until they part with their personal biometric information to the government.”

The petitions have termed the Aadhaar Act of 2016 unconstitutional and contrary to the concept of limited and accountable governance.