New Delhi: First the question: Do Indians have a fundamental right to privacy? The answer of this question will be known today when a nine-judge Constitution Bench of the Supreme Court answers this question on a reference from a five-judge bench.
The nine-judge bench, headed by Chief Justice of India J S Khehar and including the likes of Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S Abdul Nazeer, had reserved its verdict on the matter on August 2 after so much arguments over six days.
It is worthwhile mentioning that the right to privacy question was referred to the nine-judge bench after a clutch of petitions challenging the Aadhaar Act came into the foray before the five-judge bench. These petitions are of the view that the Aadhaar Act violated people’s right to privacy.
But when it comes to the existing position of law, as settled by an eight-judge Supreme Court bench in 1954 (in the M P Sharma case) and then straightaway by a six-judge bench in 1962 (in the Kharak Singh case), was that there was no fundamental right to privacy in the Constitution.
The five-judge finally come to the outcome that the authenticity of these rulings would have to be analyzed to begin with before it could take a final decision on the petitions challenging Aadhaar. The question was referred to the nine judges.
Senior counsel Gopal Subramanium, who argued for declaring privacy a fundamental right, has said that “liberty is a pre-existing law” and “all that the Constitution did is to enumerate it”. He said “privacy was embedded in the expressions liberty and dignity as appearing in the Preamble to the Constitution. Liberty is inalienable… all choices are a part of the exercise of liberty… humans cannot exist without liberty… liberty is heart and soul of the Constitution”.