The composition of the Constitution Bench on Aadhaar, which begins its hearing from 2 p.m. tomorrow, had led to an uncertainty as to how a five-judge bench could decide the question whether the right to privacy is a fundamental right, when a similar question was decided by a eight-judge bench in M P Sharma vs Satish Chandra in 1954.

Today, the attorney general Mukul Rahotgi, revealed at the end of the hearing of Rajbala vs State of Haryana in court 6, when Justice J Chelameswar asked him about the time that he is likely to take to finish his arguments in the case tomorrow, that he may not be available tomorrow afternoon.

Rohatgi said that he would be at Court 1, to attend the Aadhaar hearing, which he said would not take much time, because the bench was concerned only with disposing the applications seeking interim order extending relaxation of 11 August order, given by a bench of three judges.

That order had confined the use of Aadhaar card only in Public Distribution Scheme and LPG schemes.

The AG’s revelation about the agenda before the Constitution Bench therefore suggests that the CJI may have to constitute a nine-Judge bench later to decide the question whether the right to privacy is a fundamental right.

The CJI, HL Dattu, had earlier expressed his difficulty in forming a nine-judge bench at this juncture in view of vacancies, and the workload of the current Judges.