A nine-judge Bench of the Supreme Court will on July 19, 2017 hear the question whether privacy in the world’s largest democracy is a fundamental human right and is a part of the basic structure of the Constitution.
The decision, taken by a five-judge Constitution Bench led by Chief Justice of India J.S. Khehar, follows the filing of a bunch of petitions contending that the Aadhaar scheme, which requires the mandatory parting of biometric details, is a violation of the citizens' right to privacy. The petitioners have argued that right to privacy is part of Article 21, the right to life, and interspersed in Article 19, though not expressedly said in the Constitution.
Two judgments of the Supreme Court — the M.P. Sharma verdict pronounced by the then full quorum of eight judges of the Supreme Court shortly after the adoption of the Constitution in 1950 and the Kharak Singh verdict of 1962 by a six-judge Bench — had dominated the judicial dialogue on privacy over the past decades. Both judgments had concluded that privacy was not a fundamental or guaranteed right.
Though several smaller Benches of two judges have, over the years, held that privacy is indeed basic to the Constitution and a fundamental right, the arithmetical supremacy of the M.P. Sharma and Kharak Singh cases had so far ensured that they held fort.
Now, by forming a Bench of nine judges, the Supreme Court, under Chief Justice Khehar, has decided to determine once and for all whether privacy is non-negotiable. The formation of the nine-judge Bench also seeks to bring a quietus of the contradictory judicial pronouncements of the past on the issue.
“It is essential for us to determine whether there is a fundamental right to privacy in the Indian Constitution. Determination of the question would essentially entail whether the decisions in MP Sharma and Kharak Singh [cases] that there is no such fundamental right is the correct expression of the constitutional question,” Chief Justice Khehar recorded in the order.
“We have to first determine whether right to privacy is a fundamental right or not before going into the issue [on the constitutionality of the Aadhaar scheme],” he addressed the court.
“In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy... There is a battery of judgments saying privacy is a fundamental right, we cannot ignore them. We have to give serious thought to this question,” Justice J. Chelameswar, a judge on the Bench, told the government.
The other three judges on the Bench are Justices S.A.Bobde, D.Y. Chandrachud and S. Abdul Nazeer.
Justice Chelameswar said a right need not necessarily confine itself to one Article of the Constitution or on one amendment.
Attorney General K.K. Venugopal conceded that there is a “common law right” to privacy. He submitted that even as the founding fathers of the Constitution gave its citizens all kinds of fundamental rights, the right to privacy was “consciously avoided”.
The top government law officer said the 1962 Kharak Singh case judgment struck down all aspects of privacy raised in the case, which dealt with government surveillance, except to acknowledge that a citizen has privacy inside his home as “our home is our castle”.
Senior advocate Gopal Subramanium, for one of the petitioners, submitted that categorising privacy as a common law right was “quite depressing”. The petitioners are represented by senior advocates Shyam Divan, Anand Grover and advocates Vipin Nair and P.B. Suresh.
He pointed out that privacy is an “inalienable human right” as said in the United Nations Human Rights Declaration.
On July 12, 2017, the court decided to refer the Aadhaar petitions to a five-judge Bench.
The Supreme Court had referred the case for hearing before a Constitution Bench in October 2015, but the case was hanging fire despite several reminders from the petitioners. This is the first time that the Centre has formally joined the petitioners' side to mention for an early hearing by a larger Bench.
It was a three-judge Bench led by Justice Chelameswar that on October 7, 2015 referred to a Constitution Bench the question whether a person can voluntarily shed his right to privacy by enrolling for Aadhaar to access government welfare services.
The court, on July 7, 2017, took note of the fact of the enactment of the Aadhaar Act giving the scheme statutory status. The court recently upheld a statutory provision making the linking of Aadhaar with PAN mandatory.
The Centre termed Aadhaar a “transformational homegrown IT project” as recently as July 14, 2017. It said that the fundamental right of identity and various e-governance initiatives to provide food security, livelihood, jobs and health to the “teeming masses” cannot be sacrificed at the altar of right to privacy of an “elite” few who have neither applied for nor want Aadhaar.
One of the petitions being heard is filed by former National Commission for Protection of Child Rights (NCPCR) chairperson and Magsaysay award winner Shanta Sinha against 17 government notifications that allegedly make Aadhaar mandatory to access welfare schemes and benefits.
