New Delhi: A nine-judge Constitution Bench of the Supreme Court will determine on Thursday whether there is any fundamental “right to privacy” under the Indian Constitution, which arose in the furnishing of personal and biometric information under the Aadhaar card.
A five-judge bench of Chief Justice J.S. Khehar and Justices J. Chelameswar, S.A. Bobde, D.Y. Chandrachud and S. Abdul Nazeer had heard a batch of petitions that challenged the constitutional validity of the Aadhaar card and referred the matter to a nine-judge bench on whether the “right to privacy” was a fundamental right or not.
A bench of nine judges — Chief Justice J.S. Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, A.M, Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer — which heard the matter for two weeks, will revisit after 55 years two earlier rulings which held that the “right to privacy” was not a fundamental right.
The petitioners, former Karnataka high court judge K.S. Puttaswamy and others, contended that the biometric data and iris scan being collected for the Aadhaar card violated citizens’ fundamental right to privacy as personal data was not protected, and was vulnerable to exposure and misuse. It was argued that the right to life under Article 21 included the right to privacy though it was not expressly stated in the Constitution.
It was argued privacy is a broader concept and data-sharing was only one aspect of privacy. Privacy is about freedom of thought, conscience and individual autonomy and none of the fundamental rights could be exercised without assuming a certain sense of privacy. The State had an affirmative obligation to protect fundamental rights as liberty had existed prior to the constitutional era and the law had merely recognised its existence, it was contended. Liberty was fundamental to democracy and citizens could not exist without privacy, it was claimed.
Attorney-general K.K. Venugopal, however, brought to the court’s notice that an eight-judge bench in 1954 and a six-judge bench in 1962 had categorically ruled that the “right to privacy” was not a fundamental right. He also said such a right had not been expressly provided in the Constitution, though under British common law the right to privacy was a fundamental right. He said the right to privacy was not a fundamental right to be claimed either under Article 21 (right to life) or 14 (right to equality) or 19 (freedom of speech and expression).
The court reacted sharply to the A-G’s submissions and said: “In a republic founded on a written Constitution in India, it is difficult to accept that there is no fundamental right to privacy, whereas the same is available in common law (under) an unwritten constitution. There are a lot of judgments saying privacy is a fundamental right, and we cannot ignore them. We have to give serious thought to this question.”
