SC hear­ing on right to pri­vacy be­gins to­day

A five­judge bench said that the larger bench would ex­am­ine the cor­rect­ness of the two judge­ments in which it was held that right to pri­vacy was not a fun­da­men­tal right.

Deccan Chronicle - - FRONT PAGE - J. VENKATESAN | DC NEW DELHI, JULY 18

A nine-judge Con­sti­tu­tion Bench of the Supreme Court will be­gin hear­ing ar­gu­ments on Wed­nes­day whether there is a fun­da­men­tal “right to pri­vacy” un­der the Con­sti­tu­tion, which is af­fected by the fur­nish­ing of per­sonal and bio­met­ric in­for­ma­tion for the Aad­haar num­ber.

A five-judge bench of Chief Jus­tice J.S. Khe­har and Jus­tices J. Che­lameswar, S.A. Bobde, D.Y. Chan­drachud and S. Ab­dul Nazeer, hear­ing a batch of pe­ti­tions chal­leng­ing the con­sti­tu­tional va­lid­ity of Aad­haar card, re­ferred the mat­ter to a nine-judge bench.

The pe­ti­tion­ers, former judge of Kar­nataka high court Jus­tice K.S. Put­taswamy and oth­ers, had con­tended that the bio­met­ric data and iris scan that was be­ing col­lected for the is­suance of Aad­haar card vi­o­lated the fun­da­men­tal right to pri­vacy of the cit­i­zens as per­sonal data was not pro­tected, and was vul­ner­a­ble to ex­po­sure and mis­use.

It was ar­gued that right to life un­der Ar­ti­cle 21 of the Con­sti­tu­tion would in­clude right to pri­vacy though it was not ex­pressly stated in the Con­sti­tu­tion.

At­tor­ney-gen­eral K.K. Venu­gopal, how­ever, brought to the no­tice of the top court that an eight­judge bench in 1954 and a six-judge bench in 1962 had cat­e­gor­i­cally ruled that ‘right to pri­vacy’ was not a fun­da­men­tal right.

He also said such a right had not been ex­pressly pro­vided in the Con­sti­tu­tion, though un­der the Bri­tish Com­mon Law right to pri­vacy was a fun­da­men­tal right.

He said ju­di­cial dis­ci­pline war­rants that a larger bench of nine judges should go into the cor­rect­ness of the two ear­lier judg­ments.

Re­fus­ing to ac­cept the at­tor­ney-gen­eral’s sub­mis­sion, Jus­tice Che­lameswar ob­served, “In a Repub­lic founded on a writ­ten Con­sti­tu­tion in In­dia, it is dif­fi­cult to ac­cept there is no fun­da­men­tal right to pri­vacy.”

A nine-judge Con­sti­tu­tion Bench of the Supreme Court will de­ter­mine on Wed­nes­day whether there is any fun­da­men­tal ‘right of pri­vacy’ un­der the Con­sti­tu­tion, which arose in fur­nish­ing of per­sonal and bio­met­ric in­for­ma­tion un­der the Aad­haar card. Re­fus­ing to ac­cept the at­tor­ney-gen­eral’s sub­mis­sion, Jus­tice Che­lameswar ob­served, “In a Repub­lic founded on a writ­ten Con­sti­tu­tion in In­dia, it is dif­fi­cult to ac­cept there is no fun­da­men­tal right to pri­vacy, whereas the same is avail­able in Com­mon Law, an un­writ­ten Con­sti­tu­tion. There are a lot of judg­ments say­ing pri­vacy is a fun­da­men­tal right, we can­not ig­nore them. We have to give se­ri­ous thought to this ques­tion.”

The pe­ti­tion­ers ar­gued that though an eight­judge bench and six­judge bench had held that the right to pri­vacy was not a fun­da­men­tal right, the po­si­tion had changed in the con­text of In­dia sign­ing the UN Dec­la­ra­tion of Hu­man Rights.

They pointed out that the apex court had in a catena of cases had ex­panded the scope of “right to life” un­der Ar­ti­cle 21 to in­clude “right to en­vi­ron­ment”, “right to clean air”, “right to sleep” and “right to pri­vacy” was also im­plic­itly pro­tected un­der Ar­ti­cle 21.

It has been al­leged that the Aad­haar scheme in­fringes on the ‘fun­da­men­tal right to pri­vacy’.

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