Privacy a fundamental right? 9-judge SC bench will decide

NEW DELHI: The Supreme Court will shortly decide whether right to privacy is part of the fundamental rights of a citizen, in what is set to be a landmark verdict that will define the width of privacy citizens can enjoy as well as the right of the state to restrict it. At present, neither the Constitution nor any law recognises privacy as a fundamental right.“It has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution,” a fivejudge bench of Chief Justice J S Khehar and Justices J Chelameswar, S A Bobde, D Y Chandrachud and S Abdul Nazeer said on Tuesday. The bench posted the question for determination before a nine-judge bench, which will include four more judges — Justices R K Agrawal, R F Nariman, A M Sapre and Sanjay Kishan Kaul.The larger bench plans to complete the hearing on Wednesday itself, which raises the prospect of the vexed issue being resolved shortly, perhaps as early as next week. In any case, Chief Justice Khehar’s tenure comes to an end on August 27.Appearing for the government on Tuesday, attorney general K K Venugopal cited two earlier Supreme Court judgments, one by an eightjudge bench and another by a six-judge bench, to argue that as per these judgments, the ‘right to privacy’ was a common law right and not a fundamental right.Venugopal said since past SC judgments had given privacy the status of a common law right, it permitted no one to challenge the validity of a policy decision — Aadhaar — on the ground that it violated his/her fundamental right.Many judgments in the recent past had held right to privacy as an indifferentiable part of fundamental right to life. They ran contrary to the eight-judge bench judgement in M P Sharma in 1954 and the six-judge bench order in Kharak Singh case in 1962, which had categorically ruled that right to privacy was not a fundamental right.Senior advocates Shyam Divan and Gopal Subramaniam, appearing for the petitioners, criticised the Centre’s view and said to term right to privacy as a common law right in this age and time was regressive.There are 20 petitions pending in the SC challenging the constitutional validity of Aadhaar, alleging that it violated a citizen’s right to privacy by linking his biometric data to his activities.The challenge thrown up by the conflicting decisions rendered by SC benches forced the five-judge bench to take the task of determining the nature and character of right to privacy head on and expeditiously. “Determination of this question will essentially entail whether the decision recorded by this court in M P Sharma and Kharak Singh, that there is no such fundamental right, is the correct expression of the constitutional position,” the bench said.The constitutional undercurrent is whether right to privacy has not assumed the character of a fundamental right given the passage of time (more than six decades) and the great strides by technology which has made it easy to invade into others’ privacy. The bench also said the two earlier judgments — Sharma (1954) and Singh (1962) — were rendered by the court while dealing with aspects of surveillance and not while examining the contours of the core fundamental right, right to life.