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Supreme Court to decide whether Right to Privacy is a fundamental right

New Delhi: The Supreme Court on Tuesday said before deciding on petitions challenging Aadhaar Act as a violation of privacy, the Apex court first needs to settle the constitutional status of the right to privacy for citizens of India.

The five-judge bench, headed by Chief Justice Of India J S Khekar and Justices J Chelameswar, S A Bobde, S Abdul Nazeer and D Y Chandrachud, decided to set up a nine-judge bench to first settle the constitutional status of the right to privacy before the Court decides on petitions challenging the Aadhaar Act.

The CJI said, “During the course of hearing today it has become essential for us to determine whether right to privacy is a fundamental right under the Constitution” and “That needs to be settled. If not, we can’t go forward”.

The Bench will be hearing arguments on the point today and decide whether the five-judge bench will still have to adjudicate on the Aadhar Act.

The Apex Court also took note of its previous decisions in M P Sharma’s case in 1954 and Kharak Singh’s case in 1962, which held that privacy was not a fundamental right in both the cases. The decision in M P Sharma’s case was adjudicated by eight-judge bench while Kharak Singh’s case was decided by a six-judge bench.

“It is essential for us to determine whether there is a fundamental right to privacy in the Indian Constitution. Determination of the question would essentially entail whether the decisions in M P Sharma (case) by an eight-judge bench and Kharak Singh (case) by a six-judge bench that there is no such fundamental right is the correct expression of constitutional provisions,” the Bench said.

KK Venugopal, Attorney General appearing for the Centre, said “ our founding fathers have encompassed all rights. But consciously, this (right to privacy) is omitted”.

To that, Justice Chelameswar replied saying “It is illogical to argue that our Constitution is devoid of right to privacy while common law identifies it. Textually it is correct today that there is no right to privacy in the Constitution. But even freedom of press is not expressly stated. This court has interpreted it.”

Besides the current challenge against the Aadhaar Act, the court is also facing the question of mandating Aadhar to avail social welfare benefits under Government schemes.

Justice Chelameswar also noted smaller benches decision in the past which held privacy as a fundamental right.

The Apex Court’s Division Bench previously upheld Centre’s notification of furnishing Aadhar numbers for filling their IT returns on 9 June.