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A three-judge bench will hear cases challenging Aadhaar – ignoring its earlier position to first constitute a larger bench to examine if unique id violates fundamental rights.

In a move that is seen leading to a fresh delay in deciding whether Indians have a fundamental right to privacy, a three-judge bench of the Supreme Court is set to hear this week cases challenging Aadhaar – ignoring its earlier position to first constitute a larger bench to examine if the unique identification scheme violates fundamental rights.

A bench of justices J. Chelameswar, A.M. Khanwilkar and Navin Sinha will Friday hear a batch of petitions starting from 2012 challenging the legal validity of Aadhaar. The petitioners include former high court judge K. Puttaswamy, Magsaysay awardees Aruna Roy and Shanta Sinha among others.

The court is likely to only address whether a stay must be granted against the government’s decision to make Aadhaar mandatory for all social welfare schemes.

Chelameswar had headed the bench that had directed the government to not make Aadhaar mandatory and had sought a determination on the privacy issue. He has since not been part of any bench that heard cases related to Aadhaar.

A three-judge bench had in August 2015 referred to a constitution bench of at least five judges to determine if right to privacy is a fundamental right and if so, whether Aadhaar violates fundamental rights. That bench is yet to be constituted by Chief Justice of India J.S. Khehar. According to precedent, only a bench of nine judges or more can pass a ruling on privacy.

The government’s stand has been that currently there is no fundamental right to privacy guaranteed by the constitution to an Indian citizen. It has also argued that the top court’s orders were passed when there was no legislative backing for Aadhaar. Subsequently, the Aadhaar (Targeted Delivery of Financial Subsidies, Benefits and Services) Act, 2016, was passed to make Aadhaar mandatory for obtaining any benefits that flow from the consolidated fund of India.

Petitioners challenging Aadhaar have repeatedly mentioned before the chief justice that a larger constitution bench must be set up at the earliest for an authoritative determination on the issue. The chief justice on more than one occasion had said that the larger bench will be set up according to Chelameswar’s schedule.

Aadhaar is now mandatory for more than a dozen government schemes including for filing income tax returns. Last month, a separate bench of the apex court approved of the government’s decision to link Aadhaar with Permanent Account Numbers.

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