A Five Judge Bench specially constituted for hearing of petitions challenging the constitutional validity of Aadhaar has referred the limited question 'whether right to privacy is a fundamental right or not' for the consideration of a Nine Judge Bench. The Nine Judge Bench will hear the case tomorrow.
The Bench observed that it is essential to decide 'whether right to privacy is a fundamental right or not' before adjudicating on the petitions challenging Aadhaar. According to the Bench it is also necessary to decide the correctness of the decisions in MP Sharma and Kharak Singh.
"During the course of hearing today, it has become essential for us to define if there is any right to privacy under the Indian Constitution. Determination of this question would essentially entail whether the decision recorded by this court in M P Sharma by a 8 judge bench in 1954 and by a 6 judge bench in Kharak Singh in 1962 that there is no such right is a correct expression. Before dealing with the matter this issue should be placed before a nine judge bench tomorrow"
The Five Judge Constitution Bench of CJI Khehar, Justice Chelameswar, Justice Bobde, Justice Chandrachud and Justice Abdul Nazeer heard the arguments of Attorney General KK Venugopal, lawyers for the petitioners- Senior Advocates Gopal Subrmaniam, Shyam Divan and Aravind Dattar.
It was in August 2015, the Supreme Court bench of Justices J. Chelameswar, S.A. Bobde and C. Nagappan decided to refer the challenges to the Aadhar program to a constitution bench, especially to determine the existence of a right to privacy as a fundamental right.
In the reference order the three Judge Bench observed as follows; We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) 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. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.