Nine-judge SC bench to hear if privacy is a fundamental right

A five-judge Constitution bench headed by Chief Justice J S Khehar said that the larger bench would examine the correctness of the two judgements delivered in the cases of Kharak Singh and M P Sharma

PTI file image of Aadhaar Card

NEW DELHI: Right of privacy — whether it is a fundamental right under the Constitution or not — will be decided by a nine-judge Constitution bench on Wednesday when it hears a case which challenges the validity of the Aadhaar scheme.

A batch of petitions had questioned whether privacy is a fundamental right and key to the challenge to the validity of the Aadhaar scheme.

The formation of the bench under chief justice J S Khehar would also bring to an end all the contradictory judicial rulings in the past on the issue.

The bench will sit on Wednesday and is likely to conclude the hearing in a day. Once the nine-judge bench decides the sanctity of the right to privacy, the case will go back to the five-judge bench to examine the petitioners’ arguments on whether Aadhaar violates the right to privacy.

During the hearing on Tuesday, the five-judge Constitution bench headed by the CJI said, “It is essential for us to determine whether there is a fundamental right to privacy in the Indian Constitution.”

“The determination of this question will essentially entail whether the decision recorded by this court in M P Sharma of 1950 by an eight-judge Constitution bench, and also, in Kharak Singh of 1962 by a six-judge Constitution bench, that there is no such fundamental right, is the correct expression of the constitutional position,” the order reads.

However, over the years different benches of the apex court have concluded that privacy is indeed a fundamental right.

Attorney General K K Venugopal argued that, “Indians have no fundamental right to privacy under the Constitution and the previous rulings of the Supreme Court still holds.” This prompted Justice Chelameshwar to tell the Centre, “In a republic founded on a written constitution, it is difficult to accept there is no fundamental right to privacy.

This right was there even before constitution was framed.”

The AG said, “There is a ‘common law right’ to privacy and even the founding fathers of the constitution gave its citizens all kinds of fundamental rights, the right to privacy was consciously avoided.” Appearing for the petitioners, senior advocates Shyam Divan, Gopal Subramanium and Arvind Datar said it is necessary to consider right to privacy as a fundamental right.