The Supreme Court
on Tuesday referred to a nine-judge constitution bench the question whether right to privacy
is a fundamental right on which hinges the challenge to the validity of the Aadhaar scheme.
The Bench observed that it is essential to decide ‘whether right to privacy
is a fundamental right or not’ before adjudicating on the petitions challenging Aadhaar.
Justice Khehar said the bench will decide "whether there is no right of privacy in the Indian Constitution".
The apex court said that the nine-judge bench will also examine the correctness of the position taken by a eight-judge bench in 1954, and subsequently by a six-judge bench in 1962.
The court said both in 1954 and 1962, the benches had held that privacy is a not a fundamental right.
However, after the mid-1970s, benches of two and three -judges had consistently taken the position that privacy is a fundamental right.
The issue whether privacy is a fundamental right is pivotal to the challenge to the validity of the Aadhaar scheme and touchstone of right to privacy, said a bunch of petitions before the court.
The petitioners have contended that the collection of iris scan and fingerprints by the State violate the right to privacy
of the citizens.
The apex court said that if the nine-judge bench after examining the matter decides that right to privacy
is a fundamental right then all matters relating to the Aadhaar scheme will go back to the original three-judge bench.
A three-judge bench had in 2015 referred to a Constitution bench the batch of petitions challenging the Centre's Aadhaar card
scheme to decide whether right to privacy
was a fundamental right.
The petitioners had claimed that collection and sharing of biometric information, as required under the scheme, was a breach of the "fundamental" right to privacy.
Allowing the Centre's plea, the court had framed various questions, including as to whether right to privacy
is a fundamental right, to be decided by a Constitution bench.
"If yes, then what would be contours of the right to privacy," the bench had said while referring the matter to the then CJI for setting up the larger bench.
At an earlier hearing, then AG Mukul Rohatgi, while backing the Aadhaar card
scheme, had contended that right to privacy
was not a fundamental right.
"No judgment explicitly cites right to privacy
as a fundamental right. It is not there under the letters of Article 21 either. If this court feels that there must be clarity on this subject, only a Constitution Bench can decide," the AG had said.
He had cited two judgments, pronounced by six and eight- judge benches, which had held that right to privacy
is not a fundamental right.
Subsequently, smaller benches had held a contrary view and, hence the matter needed to be decided by a larger bench, he had said.
"Whether right to privacy
is a fundamental right guaranteed under Part III of the Constitution of India, in the light of express ratio to the contrary by an eight-judge bench in M P Sharma case and also by a six-judge bench of this court in Kharak Singh's case has to be decided," Rohtagi had said.