9-judge bench to hear privacy, Aadhaar issues

AG says right to privacy not included in statute

The Supreme Court on Tuesday placed before a nine-member bench the question of whether the right to privacy is guaranteed under the Constitution. “We want to decide if it is a right or fundamental right or not,” a five-member bench headed by chief justice J S Khehar said, after Attorney General K K Venugopal argued the nation’s founding fathers had “consciously” decided not to include the right in the Constitution.

The top law officer cited an eight-judge (full quorum at that time) bench decision in the M P Sharma vs Satish Chand case of 1954, and a six-judge bench decision in the Kharag Singh vs State of UP case of 1962 to claim the courts had decisively ruled there was no fundamental right to privacy.

The bench, also comprising J Chelameswar, S A Bobde, D Y Chandrachud and S Abdul Nazeer, decided to place the matter before a larger bench to examine the crucial question about the right to privacy, raised by a group of Aadhaar challengers.

 “During the course of the hearing, it seems that it has become essential for us to determine whether there is any fundamental right to privacy under the Indian Constitution,” the bench said.

Judicial history
Notably, since an eight-judge bench had already held in 1954 that the right to privacy was not a fundamental right, it became necessary for a larger bench of nine judges to examine the correctness of the law laid down in the previous judgement.

 The petitioners, led by former Karnataka High Court judge K S Puttaswamy, have contended the government's move to issue Aadhaar to every citizen violated the right to privacy as it forced people to part with intimate body details.

They said the right to privacy was part of the right to life guaranteed under Article 21 of the Constitution and interspersed in Article 19 of the Constitution.

“We are of the view that the issue deserves to be placed before a nine-judge bench,” Khehar said.

The bench also said other issues with regard to Aadhaar would only be considered after the nine-member bench delivered its verdict.

Privacy defenders
Senior advocates Gopal Subramanian, Shyam Divan, Anand Grover and Arvind P Datar, appearing for a batch of petitioners, contended the apex court in subsequent judgements had recognised the right to privacy.

The nine judges are Khehar, Chelameswar, Bobde, R K Agrawal, R F Nariman, Abhay Manohar Sapre, Chandrachud, Sanjay Kishan Kaul and Nazeer.