The question about the constitutional status of right to privacy arose in a bunch of petitions, led by retired HC judge K S Puttaswamy, which had, in 2012, challenged the UPA government’s decision to introduce the biometric data-enabled Aadhaar ID for citizens. This question was referred to a five-judge Constitution bench on August 11, 2015.
In a decision that will touch the lives of all 134 crore Indians, a nine-judge Supreme Court bench will pronounce judgment on Thursday on the complicated issue of whether the privacy of an individual was a part of his/her inviolable fundamental rights? According to SC sources, there will be six judgments on the issue by the bench.
The five-judge bench, led by Chief Justice J S Khehar, met on July 18 to decide the issue, but was told by the Centre that the strength of the bench was inadequate as an eight judge bench in the M P Sharma case in 1954, and a six judge bench in the Kharak Singh case in 1962, had ruled that right to privacy was not a fundamental right. The bench was quick to refer the matter to a nine-judge bench, which began hearing arguments from July 19, and concluded hearing on August 2, after a lively debate involving renowned lawyers to greenhorns.
The Centre, through attorney general K K Venugopal, had said, “Privacy, even if assumed to be a fundamental right, consists of a large number of sub-species… It will be constitutionally impermissible to declare each and every instance of privacy a fundamental right. Privacy has varied connotations when examined from different aspects of liberties.
If the SC wants to declare it a fundamental right, then it probably has to determine separately the various aspects of privacy and the extent of violation that could trigger a constitutional remedy.”
This argument presented to the bench of Justices Khehar, J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer the constitutional complications intrinsic to privacy when its width and play is examined through the crosswires of fundamental rights.
Acknowledging the challenge involved, Justice Chandrachud, on the last day of hearing, tentatively outlined a proposal — a three-tier, graded fundamental right status to privacy.
“The first zone could be the most intimate zone of privacy concerning marriage, sexuality, relation with family, and law should frown upon any intrusion.
The State could still intrude into this intimate zone in extraordinary circumstances provided it met stringent norms. Second would be the private zone, which involves parting of personal data by use of credit card, social network platforms, I-T declarations. In this sphere, personal data… … will be used only for the purpose for which it is shared by an individual. Third is the public zone, where privacy protection requires minimal regulation. Here, personal data shared will not mean the right to privacy is surrendered. Individual will retain his privacy to body and mind,” he had said.