It is no news that the Aadhaar Scheme that makes it mandatory for the citizens to link their PAN cards with the Aadhaar cards, along with the fact that the Constitution of India does not specifically recognise the ‘Right to Privacy’ as a fundamental right has resulted into a nationwide debate. The 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ, that was hearing the Aadhaar right to privacy matter today found itself incompetent to decide the issue in the light of the decisions of larger benches that said that ‘right to privacy is not a fundamental right’ and as a result, tomorrow, a 9-judge bench will decide whether right to privacy is a fundamental right or not. Since, the right has not been recognized in Constitution, the Supreme Court has, on various occasions, defined it’s scope as per the principles of ‘Life and Personal Liberty’ as enshrined under the Constitution of India. The issue was first decided in 1954 and it still stands unresolved in 2017.
Below are the landmark judgments on the ‘right to privacy’ issue:
- M. P. Sharma v. Satish Chandra, 1954 SCR 1077 : This is the first case that dealt with the issue concerning the right to privacy & the 8-judge bench categorically held that right to privacy is not fundamental right. Below is the relevant except from the judgment:
“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”
- Kharak Singh v. State of U.P., 1964 SCR 332 : The 4:2 majority of a 6-judge bench held that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
However, K. Subba Rao, J, writing down the minority view for himself and J.C. Shah, J said that “the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. 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.” Further defining the ‘right to personal liberty’, it was said that “it is a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.”
- Gobind v. State of M.P., (1975) 2 SCC 148: Holding that the right to privacy is not absolute, the 3-judge bench said that “Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy.” It was further said that “as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.”
- PUCL v. Union of India, (2004) 9 SCC 580: The 3-judge bench held that “Right to privacy is subservient to that of security of State.”
- State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5: A 3-judge bench held that “the interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the court is required to see is that the procedure itself must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.”
- District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496: A division bench held that “every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed.”
- Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1: In the matter where the constitutionality of the 99th Constitutional Amendment & National Judicial Appointments Commission, 2014 was in question, this is what the the 5-judge bench said that “the balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual.” In an attempt to strike a balance between right to know and right to privacy, the Court said that “The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy.”
- Rajagopal v. State of T.N., (1994) 6 SCC 632: A 2-judge bench defined the right to privacy as the right to be let alone. It held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21.
We also cannot ignore the fact that 2 out of the 9-judges that will hear the matter tomorrow, are of the opinion that the rulings in the MP Sharma and Kharak Singh cases are incorrect. J. Chelameswar and S. A. Bobde, JJ were a part of the 3-judge bench in K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735 in which the Aadhaar matter was referred to a larger bench while stating that if the MP Sharma and Kharak Singh cases “are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”
A lot is at stakes when it comes to tomorrow’s hearing. A 9-judge bench’s decision might prove as a huge turning point. Will the decision prove to be a blow to the Aadhaar Scheme that the Government is so passionate about or will it end up sparking another debate on the fundamental rights of the citizens? Let’s wait and let tomorrow decide.