Is Government correct to deny privacy as a fundamental right? SC to decide

Today, a five-judge bench of the Supreme Court presided over by Chief Justice of India J.S. Khehar heard a bunch of petitions today challenging Aadhaar, a biometrics-linked residents ID, on different grounds, including those related to right to privacy.

They decided to constitute a nine-judge bench to decide on the issue of whether we enjoy a right to privacy as a fundamental right under the Constitution of India.


In court today

Today’s five-judge bench heard counsels from both the sides and decided to constitute a nine-judge bench to look into the matter of right to privacy and the validity of judgements in Kharak Singh judgment and  M.P. Sharma judgement (a six-judge bench decision issued in 1962 and an eight-judge bench decision issued in 1954, respectively).

Attorney General KK Venugopal argued that Indians have no fundamental right to privacy under the Constitution, and that rulings of the Supreme Court on the subject after the MP Sharma and Kharak Singh judgments were per incuriam and not legally binding.

The court has allotted two and a half hours tomorrow each for the petitions and the Union Govt to presenting their arguments before the nine-judge bench. The request made by the Centre for more time to be allotted was rejected by the court.

Today’s hearing arose from earlier arguments made by Attorney General Mukul Rohatgi in the 22nd July 2015 hearing of the Justice K.S. Puttuswamy v. Union of India writ petition; in which the Attorney General had, on behalf of the Union Government, submitted that the right to privacy was not a fundamental right in our Constitution.

Earlier, after looking at various precedents in which right to privacy was referred or asserted, in an order dated 11th August, 2015, a three-judge bench headed by Justice Chelameswar had noted “We are of the opinion that the cases on hand raise far-reaching questions of importance involving interpretation of the Constitution… that there appears to be certain amount of apparent unresolved contradiction in law declared by this (Supreme) court.” Therefore, the bench was of the opinion that the questions involving Right to Privacy should be examined and authoritatively decided by a bench of the appropriate strength, and asked the Registry of the Supreme Court to place the matter before Hon’ble Chief Justice of India for appropriate orders. These questions are:
(i) whether there is any “right to privacy” guaranteed under our Constitution and,
(ii) if such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution on the right to privacy;

Two years on, on 7th July, 2017, a bench comprising of Justices Chelameswar, Khanwilkar and Sinha had suggested that both the petitioners and the Union Govt request the Chief Justice to constitute a larger bench so that all the issues coming out of Aadhaar should be decided by a larger bench and once and for all. A few days ago, on 12th July, 2017, Chief Justice of India J.S. Khehar decided upon the date for the hearing by a constitutional bench of 5 judges.
This now will in turn, look into the past judgments and will decide whether there is a requirement of a larger bench upon the question of privacy.
The bench headed by C.J.I. Justice J.S. Khehar will hearing the matter tomorrow, Wednesday, 19th July, 2017.

A copy of the order passed by the court today can be found here.

Further reading:

'Privacy is a Fundamental Right' (Chinmayi Arun, The Hindu)