In October 2015, a 3 judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. The reference was mainly to determine the existence of a right to privacy as a fundamental right, after the Government of India argued that there is no such fundamental right under the Constitution of India. The arguments were originally made in Justice K.S. Puttaswamy (Retd.) & Another v Union of India and Others. Under this petition, the Indian Government’s Aadhaar project was questioned on issues such as a lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhar in this matter. Several petitions that address various facets of the Aadhaar project have since been tagged with this petition.

Nearly two years after this reference, a 5 Judge constitution bench of the Supreme Court of India (SC) heard arguments on whether the Constitution of India provides for a fundamental right to privacy earlier today. After hearing limited arguments from both sides, the Court decided that this limited question on the existence of a fundamental right to privacy will be heard and decided by a 9 judge constitution bench tomorrow (July 19, 2017).

The proceedings began with the bench asking the respondents to identify the scope of the question before them, and their position on the issue. The Attorney General (AG) stated that while it is admitted that there is a right to privacy under common law, the Constitution of India does not explicitly provide for a fundamental right to privacy. He further stated that based on the judgments in Kharak Singh v. State of Uttar Pradesh and M P Sharma and Others v. Satish Chandra it is clear that there is no fundamental right to privacy under the Constitution of India, and that subsequent judgments on the issue are per incuriam. The AG stated that the issue before the court is whether there is a ground to distinguish these two judgments.

At this stage, Justice Chandrachud observed that these judgments were made on the basis of the prevailing doctrine at the time as described in A K Gopalan v. State of Madras, which treated each fundamental right as an individual and separate right. He further observed that this doctrine was overturned under Maneka Gandhi v. Union of India, which provides for a new reading of fundamental rights, and that the rights must be read together.

Reiterating his earlier argument, the AG observed that the ratio in the Kharak Singh judgment clearly states that there is no fundamental right to privacy under the Constitution of India. He submitted that the immediate issue before the Court should be limited to whether or not the judgments in Kharak Singh and M P Sharma continue to be binding, or have been distinguished by the subsequent judgments (of smaller benches) on the issue.

Justice Chandrachud and Justice Chelameswar both intervened, pointing out that the Kharak Singh judgment is limited to a discussion on the right to privacy in the context of surveillance, and makes specific reference to the Fourth Amendment of the Constitution of the USA in this context. It was observed that while the judgment in Kharak Singh does refer to the lack of a specific right to privacy under the Indian Constitution, this statement is not central to the ratio in the judgment. Justice Chelameswar observed that it is difficult to accept an argument against a constitutional right to privacy if a common law right to privacy exists, and predates the Constitution. He also noted that several (smaller) benches of the court have since recognised the right to privacy under the right to personal liberty.

The AG questioned whether the present 5 judge bench, could overrule the Kharak Singh and M P Sharma judgments which were both made by larger benches (6 and 8 judges respectively).

Justice Chandrachud also subsequently reiterated his observation that the judgment in Kharak Singh was made on the basis of the doctrine set forth in A K Gopalan. This approach has since been discarded post the Maneka Gandhi judgment, which also overruled the Kharak Singh judgment and adopted the minority / dissenting judgment in Kharak Singh.

The Chief Justice of India also intervened, stating that it was unnecessary to further argue the merits of this issue if it needs to be decided by a larger bench, and that it was not necessary for the entire matter (i.e. the entire petition) to be argued before a larger bench. He suggested that the limited question being discussed before the court may be argued before a larger 9 judge constitution bench immediately. He also suggested that once the decision of the 9 judge bench is available, the matter could go back to the original bench that was hearing the petition.

At this stage the counsels for the petitioners observed that several questions relating the existence of a fundamental right to privacy were of constitutional importance, and must be discussed. The counsels stated that several developments have occurred in jurisprudence since the judgments in Kharak Singh and M P Sharma were written, both in India and internationally, and noted that a full discussion needs to be had on the nature of this right. The Chief Justice agreed, and stated that this larger question will be referred to the 9 judge bench. The counsels for the petitioners also argued that subsequent to the decision of the 9 judge bench, the full petition should also be heard before a 5 judge constitution bench, given the importance of the matter.

The order of the Court states as follows: “During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. – 1950 SCR 1077 by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and Ors. – 1962 (1) SCR 332 by a six-Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position. Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nine-Judge Constitution Bench….”

The order does not specify whether the petitions will be placed before the original bench or a 5 judge bench once the 9 judge bench has made its decision.

It has been argued that without the right to privacy, our other rights will not stand for much. The decision of the 9 judge bench will be of importance in determining the validity of the Government’s Aadhaar project. It will also be of equal importance in determining the rights of India’s citizens in a world which affords increasing value to the collection and use of personal information (often indiscriminately), whether for public or private purposes.