The bench, also comprising Justices D Y Chandrachud and Sanjay Kishan Kaul, meanwhile, declined to fix a date of hearing on a batch of petitions challenging constitutional validity of Aadhaar on grounds including that it fringed Right to Privacy of citizens.
"A seven-judge bench has to be constituted for this. At present it is not possible. There are three other matters which are to be heard by constitution benches. We have already taken a call. This matter is in my mind. We will hear the matter one after the other," it said.
Senior advocate Shyam Divan, appearing for one of the petitioners, alleged that the Central government is not following the various orders passed by the apex court that the usage of Aadhaar would be voluntary and not mandatory.
He also referred to certain recent decisions of the government including making Aadhaar mandatory for issuance of driving licenses and filing of IT returns and by making the cards, issued by Unique Identification Authority of India (UIDAI), mandatory, the government is committing "contempt of court".
"The interim orders from time to time is not the solution. Final disposal of the matter is the solution," the bench said, adding various orders have already been passed that Aadhaar is not mandatory for taking benefits of welfare schemes.
The apex court on August 11, 2015 had said that Aadhaar cards will not be mandatory for availing benefits of government's welfare schemes and barred the authorities from sharing personal biometric data collected for enrollment under the scheme.
However, on October 15, 2015 it had lifted its earlier restriction and permitted the voluntary use of Aadhaar cards in welfare schemes that also included MGNREGA, all pension schemes and the provident fund besides ambitious flagship programmes like 'Pradhan Mantri Jan Dhan Yojna' of the NDA government.
A five-judge bench headed by the then Chief Justice H L Dattu had also put a caveat in its interim order for the Centre and said, "We also make it clear that Aadhaar card scheme is purely voluntary and not mandatory till the matter is finally decided by this court, this way or the other way."
The bench, while including the four other schemes along with LPG and PDS where Aadhaar may be used, had said, "The Union of India to follow all other orders passed by this court since September 23, 2013."
The bench had also said that a larger bench was required to be set up for final disposal of the petitions that also include the question as to whether the right to privacy is fundamental right.
Divan, representing one of the petitioners who has challenged the Aadhaar card scheme, had claimed that the UIDAI, which runs the programme, is neither backed by any law nor by any notification and is getting biometric details through private agencies.
The lawyers for the petitioners had contended that the scheme is "all pervasive" and is not foolproof either and hence, cannot be used for other programmes.
On October 14, 2015, the apex court took note of Centre's plea that Aadhaar cards be allowed to be used "voluntarily" for welfare programmes other than PDS and LPG schemes and asked whether it can assure that nobody would be at a "disadvantageous" position for want of Aadhaar.
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