Whether Right to Privacy is a Fundamental Right under the Constitution of India is the question before a nine judge constitutional bench. This nine judge bench has only been constituted to look into whether privacy is a fundamental right after which the matter would be referred back to the five judge bench which is deciding the matter on linkage of Aadhar, its mandatory use and the biometric paradigm of the same. The decision of the Constitutional Bench would provide clarity on the issue which will also frame the course of Whatsapp Facebook Privacy Case. 

The main reason behind the formation of a nine judge bench to hear on the matter is that there are two legal precedents in perspective wherein Right to Privacy has been declared as not being a Fundamental Right.

1. M.P.Sharma and Others vs. Satish Chandra, District Magistrate, Delhi and Others: This case was decided in 1950 by an 8 Judge Constitutional Bench wherein a search of property of the Dalmia Group resulted in a writ petition before the Supreme Court alleging that this amounted to a violation of Fundamental Rights under Articles 19(1)(f)- right to acquire, hold and dispose of property- and Article 20(3)- protection against self- incrimination. The Hon’ble Court observed,” fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right.”

2. Kharak Singh vs. State of UP and Ors: This case was decided in 1962 by a 6 judge Constitutional Bench wherein an accused was released due to lack of evidence in a dacoity case, however, police subsequently opened a history sheet against him and also put him on surveillance. The matter came before the Supreme Court in a writ petition wherein the petitioner contended that his fundamental rights under Article 19(1)(d)- Right to freedom of movement, and Article 21- Protection of Life and Personal Liberty has been violated. The Hon’ble Court observed, “The Right to Privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertaion 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.”  

In the present case, Senior Advocate Kapil Sabil has submitted that the Right to Privacy is a “quintessential right flowing out of the bouquet of rights under enshrined under Article 21.” 

The Supreme Court decisions in the cases of M.P. Sharma v. Satish Chandra, 1954 SCR 1077 and Kharak Singh v. State of U.P., (1964) 1 SCR 332 would not be relevant in the light of the “present societal context where advances in technology and communication have transformed the relationship between stakeholders inter se and in particular the relationship between the State and its citizens.” 

Another major submission that was made was regarding the A.K.Gopalan Case which is regarded as the premise for the precedents in issue in this case, that it has now being poved bad law hence these cases also need new perspective. 

The concept of privacy needs to be viewed in light of two qualitative relationships: one between the citizen and the State; the other between citizens and non-state actors, the citizen may be obligated to give access to such information “for enhancing citizens’ entitlements, access to services, prevention or detection of crime, national security, investigation and prosecution of criminal offences.”

Attorney General K K Venugopal also submitted that the privacy may be deemed a fundamental right albeit a qualified one, the Court however reacted that this is in line with the argument of the opposing party claiming it to be a Fundamental Right. If the Government concedes it needs to show instances where it can be claimed as the same. 

He also submitted, “There can be no claim to a privacy right against identification for the purpose of public welfare and social schemes of the government and to plug leakages and corruption in the administration of such schemes. It may be pointed out that the importance and utility of aadhaar for delivery of public services like the PDS, curbing bogus admissions in schools and verification of mobile number subscribers has not only been upheld but endorsed and directed by the supreme court”,  said the written submissions given by the Attorney General to the court.

In PUCL Vs Union of India Supreme court has approved the recommendations of the high powered committee headed by Justice D P Wadhwa which recommended linking of Aadhaar with PDS and encouraged state governments to adopt the same. In state of Kerala and others Vs President, Parents Teachers Association, SNVUP and others, the court directed use of Aadhaar for checking bogus admissions in schools”,

The Attorney General has vehemently maintained and tried to prove that Aadhar is a scheme that is to benefit public welfare schemes and policy implementation and he cited major examples of the same. He said that the argument for the Right to Privacy is an Elite Class privilege issue and should be taken up in better developed countries, common men like pensioners, PDS system beneficiaries should not be left out of the merits of Aadhar due to this. With this the Attorney General Cconcluded his argument.

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