The Supreme Court on Tuesday set the stage for a crucial debate on whether right to privacy is a fundamental right under the Constitution and empowers citizens to protect their private lives against any kind of intrusion by any individual, State or Government agency.
A five-judge Bench of the apex court constituted a Bench of nine judges to deal with the issue after it realised that an eight-judge Bench in 1954 ruled that no such fundamental right as right to privacy exists in the Indian Constitution.
This view was further reiterated by the apex court again in another decision in 1962 by a six-judge Bench.
However, over the years deciding crucial issues of human dignity and freedom, the apex court overlooked the above two decisions and held that right to privacy fell within Article 21 (Right to life). After the Aadhaar scheme introduced by the Government was challenged on the ground that it violates citizens’ right
to privacy, the Central Government brought the above two decisions — MP Sharma v Satish Chandra (1954) and Kharak Singh v State of UP (1962) — to buttress its argument that privacy as a fundamental right does not exist.
On Tuesday, the five-judge Bench set up to deal with the petitions against Aadhaar felt that the validity of Aadhaar needed to be de-linked from the issue of privacy. The Bench, comprising Chief Justice JS Khehar, Justices J Chelameswar, SA Bobde, DY Chandrachud and SA Nazeer, said, “It has become essential for us to determine whether there is any fundamental right to privacy under the Indian Constitution.”
The Bench decided to refer this question to a nine-judge Bench as this exercise would involve a review of the judgment of the eight-judge Bench in the MP Sharma case. Only an eight-judge Bench or a Bench of a higher composition can overrule the previous decision.
This 9-judge Bench comprising of CJI, Justices J Chelameswar, SA Bobde, RK Agrawal, RF Nariman, AM Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer will assemble on Wednesday and finish arguments within a day.
On one side of the debate will be the Attorney General KK Venugopal with law officers for State Governments who are expected to cite the eight-judge Bench’s view to argue that right to privacy is not an enforceable right under Constitution.
A a set of petitions argued by senior advocates Gopal Subramanium, Arvind Datar, Shyam Divan and Anand Grover would defend the right to privacy by submitting that the 1954 and 1962 decisions are wrong in law as subsequent decisions have expanded the meaning of privacy as an inalienable fundamental right.
The Bench said, “We will have to re-examine the correctness of these two judgments as it is an important issue at hand.”
The petitions challenging Aadhaar will go back to the three-judge Bench and will be decided following the principle laid down by the nine judges.