On Wednesday, the Supreme Court is poised to settle a Constitutional question with profound implications: do Indian citizens have the right to privacy?

The question is a fallout of the ongoing challenge to the constitutional validity of Aadhaar, the biometric-based 12-digit unique identification number that the government wants to make compulsory for access to a host of public services and social benefits.

The matter will be decided by a nine-judge bench, to which it was referred by the five-judge bench, led by Chief Justice JS Khehar, hearing the Aadhaar case, on Tuesday.

The government’s position on the matter was made clear by Attorney General KK Venugopal during the Aadhaar hearing on Tuesday. The framers of India’s Constitution “consciously omitted” privacy as a fundamental right, he argued, and the Supreme Court – in MP Sharma vs Satish Chandra, 1954, and Kharak Singh vs The State of Uttar Pradesh, 1962 – ruled that the right to privacy was not a fundamental right.

In response, the court pointed to subsequent cases where it has recognised the right to privacy. Still, to settle the matter once and for all, the bench referred it to a nine-judge bench. (Since the cases cited by Venugopal were adjudicated by eight-judge and six-judge benches, respectively, a larger bench is required to review them.)

The central question before the nine-judge bench is this: should it to go by the understanding of privacy from the 1950s and 60s or by the evolved readings of privacy and its importance to liberty that have emerged across the world since the Kharak Singh judgement was delivered in 1962.

Contentious cases

In MP Sharma, the Supreme Court dealt with a challenge to the search and seize provisions under Sections 94 and 96 of the Criminal Procedure Code. The petitioners were raided by law enforcement authorities in cases connected to the Dalmia group of companies. They argued that the search warrants, and search and seize operations violated Article 20(3) of the Constitution, which states that “no person accused of any offence shall be compelled to be a witness against himself”. Forcibly retrieving documents through warrants was akin to forcing someone to be a witness against himself, they argued. The plea also raised the question of privacy, in that the searches were termed as invasion of their private spheres.

The bench, after extensively comparing the relevant laws in India, Britain and the United States, concluded that the raids were not unconstitutional as Indian law did not have anything like the Fourth Amendment that protects Americans from unreasonable searches and seizures. It ruled:

“When the Constitution makers have thought fit not to subject such regulation [search and seize] to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a totally different fundamental right [Article 20(3)] by some process of strained construction.”

In Kharak Singh, the petitioner argued that by being constantly surveiled by the police, his fundamental right to move freely was violated. The majority view in the 4-2 judgement held that since the Constitution did not provide the fundamental right to privacy, surveillance that does not hinder physical movement of a person cannot be termed illegal.

In his dissent, however, Justice Subba Rao made out a case for the right to privacy, calling it essential for the enjoyment of personal liberty guaranteed by the Constitution. “It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty,” he reasoned. “Nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.”

New thinking

The rule of binding precedent should have made these two judgements inviolable, but the Supreme Court, in Gobind vs State of Madhya Pradesh, 1975, expressly recognised the right to privacy.

The three-judge bench invoked the need for constant evolution of the law to assert the right to privacy. Time, the court argued, ushers in new conditions. Justice K Mathew drove home the importance of privacy thus:

“Individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures. Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists.”

However, Venugopal argued on Tuesday, since the Gobind judgment was delivered by a smaller bench than either of the two that had rejected the fundamental right to privacy in MP Sharma and Kharak Singh, it became “per incuriam” (judgement given without considering precedent and, therefore, bad in law).

The nine-judge bench will have to decide whether to adopt a static view of rights, or to embrace the vibrant reading of fundamental rights in Gobind.