NEW DELHI : A nine-judge Constitution Bench of the Supreme Court on Wednesday commenced hearing to examine whether right to privacy is a fundamental right – a question pivotal to the challenge to the validity of the Aadhaar scheme.
The nine-judge constitution bench hearing the matter is being headed by Chief Justice Jagdish Singh Khehar. Other members of the bench include Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.
55 years after the Supreme Court last decided that privacy is not a basic right for citizens, a nine-judge constitution bench will return to the question as it begins hearing today a case related to petitions challenging the Aadhaar scheme.
A five-judge bench including Chief Justice of India JS Khehar yesterday said, “It is essential to decide whether there is right to privacy under the Indian constitution. We are of the view it has to be decided by a 9-judge bench.The centre said in court that the right to privacy is not in the constitution and is not a part of the right to life. But petitions say the right to privacy is inherent in the constitution.
One of the judges remarked, “Even freedom of press is not explicit in the constitution but courts have interpreted right to free speech includes freedom of expression of press.”
The bench is examining the nature of privacy as a right in context of two judgements of 1954 and 1962 which held that right to privacy was not a fundamental right. Shortly after the hearing began, petitioners’ lawyer told the Constitution Bench that privacy is embedded in all processes of human life and liberty, according to ANI.
The matter came up for hearing in the apex court after a batch of petitions raised concerns over linking of Aadhar with PAN – a move which they call an attempt to dilute civilian liberties. While hearing a batch of petitions challenging the Aadhaar scheme, a five-judge bench including Chief Justice of India JS Khehar had yesterday said, “It is essential to decide whether there is right to privacy under the Indian Constitution. We are of the view it has to be decided by a 9-judge bench.”
The Centre argued before the court that the right to privacy is not in the Constitution and is not a part of the right to life, however, the petitioners countered it by saying that the right to privacy is inherent in the Constitution.The Supreme Court then referred the matter to a nine-judge Constitution Bench to determine whether linking of PAN card with Aadhar breaches an individual’s privacy or not.
The development came days after the apex court briefly stayed the linking of Aadhar to PAN cards amid concerns over breach of privacy. Responding to it, Centre had then emphatically assured the Supreme Court that biometrics of Aadhar cardholders were safe and had not fallen into other hands.
Through its order, the Supreme Court upheld the validity of an Income Tax Act provision making Aadhar mandatory for the allotment of permanent account number (PAN) cards and the filing of tax returns, but imposed a partial stay on its implementation until a constitution bench addresses the right to privacy issue.
A bench comprising justices AK Sikri and Ashok Bhushan also upheld the legislative competence of Parliament in enacting Section 139AA of the Income Tax Act. An eight-judge bench in 1954 and six-judge bench in 1962 had both ruled that there is no right to privacy.
After the mid-1970s, benches of two and three judges have consistently taken the position that privacy is indeed a fundamental right.A batch of petitions argues that whether privacy is a fundamental right is key to the challenge to the validity of the Aadhaar scheme that records personal data of millions of Indians.
The petitioners say data like iris scans and fingerprints taken by the state violates citizens’ privacy. In 2015, then Attorney General Mukul Rohatgi, representing the government, told the Supreme Court that Indian citizens don’t have a fundamental right to privacy under the constitution – an argument he repeated subsequently.In past orders, the Supreme Court has expanded the right to life to include the right to clean air and even sleep.
If it does rule that privacy is a fundamental right, then all cases relating to the Aadhaar scheme will go back to the original three-judge bench or five-judge bench.
with Agency inputs.