#Aadhaar : SC Three Judge Bench Asks Counsel To Jointly Mention Before CJI To Constitute Constitution Bench

The Supreme Court bench of Justice J.Chelameswar, and Justices A.M.Khanwilkar and Navin Sinha, today requested the counsel for the petitioner and the Union of India in the Aadhaar case, to mention it before the Chief Justice seeking setting up of the Constitution Bench at the earliest, so as to decide the main matter referred to it in August 2015.

“Once a matter is referred to Constitution Bench, it is seized of the matter.  But we find that some orders were passed by smaller benches subsequently in the same matter”, This is how Justice J.Chelameswar responded, when the counsel for the petitioner in the Aadhaar matter, Shyam Divan, explained the urgency in seeking interim injunction, while the main challenge is pending.

The bench heard Divan this afternoon, when the applications to stay notifications making enrolment of Aadhaar mandatory, came up for hearing.

Divan summed up the sequence of events since the reference of the main matter to the Constitution Bench by a three-Judge Bench led by Justice Chelameswar on August 11, 2015,  and articulated his concerns that the delicate balance struck by the Constitution Bench, in its interim order in October 2015, is sought to be upset by the Centre, through the notifications, making Aadhaar mandatory.

Divan said: “The citizen is made a vassal of the state.  The State seeks complete control over the citizen,  from birth, dragging and tracking him or her, leading to a totalitarian state.”
Divan continued saying that the notifications issued by the Government are in excess of what the Constitution Bench had ordered, whether you take the subsequent legislation or not.

“You can’t stigmatize persons, who are in the sex trade.   Aadhaar is most invasive creeping into the situation.  Entire country becomes a concentration camp, through the creation and maintenance of electronic record of the citizens.  This is not sanctioned by the Constitution.  Therefore, we seek interim injunction”, Divan further submitted.

The Attorney General, K.K.Venugopal, contradicted Divan saying that he ignored the benefits going into the accounts of those belonging to below the poverty line as a result of enrolment of Aadhaar.  “Are these people going to be deprived of their benefits, because my friend is championing the interests of a few people?  And don’t term it as a concentration camp; I have serious reservations over the use of that phrase.”

When Justice Chelameswar wondered whether there was any need for expressing rival contentions now, when both the counsel agree that they would mention the matter before the Chief Justice together,  Venugopal said the media must report what was wrong with Divan’s contentions, and he would have difficulty in joining Divan to mention the matter, if the latter used the phrase like “concentration camp” to describe the Aadhaar enrolment.

When Justice Chelameswar intervened to say that the bench had no problem if the expression used by Divan is not unparliamentary, Venugopal retorted: “It is not one which a senior advocate would use”.

Divan responded to this saying what better description could one find.  “Let the AG suggest a better word, to describe the situation, created by mandatory enrolment of Aadhaar”, he said.

Meanwhile, the Additional Solicitor-General, Tushar Mehta, tried to explain to the bench, that the two-Judge bench of Justices A.K.Sikri and Ashok Bhushan heard and decided the Aadhaar-PAN matter, without touching the Article 21 issue, involved in the right to privacy, which is before the Constitution bench.  Divan too told the bench that the order of the two-Judge bench in the Aadhaar-PAN matter would be subject to the judgment of the Constitution bench in the main matter, as Justice Sikri himself acknowledged in his judgment that it involved too many issues which impinged on Article 21.

But Justice Chelameswar remained unconvinced and felt that benches of smaller size should not have dealt with any aspect of the matter pending before a Constitution Bench.

The bench made it clear to Divan that in case the CJI was reluctant to set up a Constitution Bench at the earliest, to deal with the plea for interim relief, he could have the liberty to come back to the three-Judge bench, and request it to deal with the issue.

All eyes are therefore on the CJI before whom AG and Divan are expected to mention the matter on Monday.

There are over a hundred notifications, including those which make Aadhaar mandatory for accessing benefits under mid-day meal scheme, and those due to rescued bonded labourers,  victims of Bhopal gas leak, girls rescued from human trafficking, etc.

Although the last hearing on June 27 before a two-judge Vacation Bench was adjourned as there was no urgency, following the extension of deadline for enrolment from June 30 to September 30, today’s hearing had raised some expectations, as Justice Chelameswar – the Judge who referred the matter to the Constitution Bench on August 11, 2015 – is now back to hear the matter.   Although a Constitution Bench gave an interim order in the case on October 15, 2015, the main matter, referred to it earlier, remained pending.