Right to Privacy: A look back at the 9-judge bench hearing & it’s possible impact on Aadhaar

The 9-judge bench Right to Privacy hearing came to end and the whole country is now waiting for the judgment to be out, some in anticipation of their rights to be recognized and some hoping for a decision that will act as a firm standing for the Aadhaar scheme. Whichever side the Supreme Court picks, one cannot deny the fact that this 6-day long hearing was one of the biggest hearings that the World has witnessed lately and whatever these 9-judges decide, is going to be a law for a long time.  To put things into perspective, this 9-judge bench was formed in the year 2017 to decide the correctness of a law that was laid down in the year 1954. Stakes are high and neither of the parties took it lightly. While some arguments gained applaud, some managed to raise a few eyebrows. Let’s look back at some of the important highlights from the hearing.

  • Privacy as a Fundamental Right without defining contours

Petitioners argued that Privacy is the very essence of liberty. It is not only a fundamental right but an inalienable right. MP Sharma and Kharak Singh cases deal with only single aspect of privacy and the Court needs to declare a broader Right to Privacy as a Fundamental right. If that is not done, all other rights will have no meaning. Dr. D.Y. Chandrachud, J showed some concern over the possible effects of declaring Right to Privacy as a Fundamental Right without defining any contours. He said that it might make the Naz Foundation judgment on Section 377 IPC vulnerable.

  • Dark Web doesn’t justify State actions

S.A. Bobde, J quizzed the petitioners on dark web to which the Petitioners responded by saying that there is no denying that 80% of the internet is Dark Web but that cannot justify State’s actions in violation of privacy. This cannot have any bearing on the recognition of the right.

  • No Fundamental Right to Privacy = Misuse by State

Petitioners put forth the concerns over possible misuse of power by the Government if Right to Privacy is not recognized as Fundamental Right. It was contended that in this digital age, if not in Aadhaar, a data protection and privacy question would have risen in another case. The delay in recognizing Right to Privacy by the Courts has resulted into the collection of the biometric data of all the citizens of the country in the name of Aadhaar. It was argued that the Government suspended the rights of the people during emergency and it wants to do the same today even in the absence of emergency.

  • Privacy is vague; has many aspects

State based it’s argument of the vagueness of the definition of Privacy. It was contended that since there is no clear definition of privacy, it cannot be elevated to Fundamental Right. It was also submitted that most of the aspects of privacy were already protected under Article 21 of the Constitution and that there was no need to declare Privacy as a fundamental right and asked the Court to define privacy on cases-to-case basis. It was argued that privacy was only a civil right and such rights were deliberately left out by the framers of the Constitution.

  • State’s notion of Privacy in a Poor or Developing nation like India

Centre argued that there should be no fundamental right to privacy in a developing nation. State of Maharashtra also took a strong stand against fundamental right to privacy and said Aadhaar is important for subsidy schemes and if asked to choose between subsidized food and private information coming out, people will choose food.

  • Privacy norms in other Countries

State argued that there were different norms of privacy in different countries and India’s definition of privacy is much different. One example of this difference that was quoted before the Court was of Public Display of Affection that was allowed in the US, to which Dr. D. Y. Chandrachud responded by saying that this means that Indians were more private and needed right to privacy.

  • Effect of recognizing Fundamental Right to Privacy on existing laws

State showed it’s apprehension towards the possible effect of declaring Right to Privacy as a Fundamental Right to Privacy by saying that there are Rules that say that compound walls can only be three feet or so and the Court will be flooded with the cases challenging such laws. J Chelameswar, J asked the State to calm down and said that declaring privacy as a fundamental right will not mean that every regulation will be struck down.

  • Right to be left alone

State submitted that privacy was nothing but a formal name for right to be left alone and that right has already been recognized as a part of liberty.

  • States in favour of Fundamental Right to Privacy

States of Karnataka, West Bengal, Punjab, Kerala and Puducherry argued in favour of fundamental right to privacy and said that there can be no liberty without privacy. Kapil Sibal, appearing for 4 out of 5 States, in rejoinder said that he had little faith on the Parliament and that the Court should decide the matter.

  • Aadhaar vis-à-vis Data Protection

Even though the Court had made it clear that it will only decide the issue relating to Right to Privacy and will not go into the merits of Aadhaar, State defended the Aadhaar Scheme during the hearing. This resulted into questioning by the Court on the Data Protection measures under the Aadhaar Act, 2016. State replied by saying that Section 29 of the Act prohibits disclosure of core biometrics. The Court seemed unimpressed and said that a robust mechanism was required.

  • Aadhaar’s survival chances

While the Court said that it will give a comprehensive judgment on right to privacy for the conceptual clarity of the nation, it also hinted that the judgment will not have a major impact on the Aadhaar Scheme. Upon witnessing the apprehension of the State, R.F. Nariman, J said that the Court was not saying that it will repeal Aadhaar. It will try to balance Aadhaar with right to privacy. All said and done, though there is strong change that the Supreme Court might recognize Right to Privacy, the Aadhaar Scheme, that prompted this great debate, will survive.


Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.


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