Story Highlights

• The Court initially wanted to conclude arguments within one day but given the constellation of senior advocates appearing on both sides, it now looks like that won’t happen.
• The petitioners, arguing that there is a fundamental right to privacy guaranteed under the Constitution, have not yet concluded and the Government, arguing otherwise, will begin its arguments tomorrow.
• Even if the court finds that there is no fundamental right to privacy does not mean you don’t have the legal right to privacy.

Like the proverbial London bus, it took nearly 700 days for Supreme Court to set up the Constitution bench to hear the Aadhar case and now we’ve just had two in two days! A five-judge bench was set up yesterday to hear the preliminary question of whether a larger bench needed to be constituted to hear questions on the right to privacy, and before you knew it, a nine-judge bench was set up for today to answer precisely this question. Though the idea was to have a one-day hearing to address this issue, the arguments remained inconclusive and will probably need all of tomorrow to conclude.

So, what’s been going on then?

After the order passed in August 2015 holding that a five-judge bench had to hear the Aadhar matter, successive Chief Justices have not set up the appropriate bench to hear the same, for whatever reason. Finally, after KK Venugopal took over as the Attorney General, he joined the petitioners in making a joint appeal to the Chief Justice to list the case for hearing before a Constitution Bench, as a result of which a bench of five judges, headed by the Chief Justice of India was set up yesterday.

While the Aadhar case raises many questions of law, the constitution bench was only required to clarify the issue of the right to privacy under the Constitution. The earlier view taken by the Supreme Court (that there was no express right to privacy under the Constitution) had never been expressly overruled by any of the smaller benches which had subsequently held that there was. Whether the old view is still valid in light of subsequent developments in constitutional law was what the Court needed to settle, and to remove any future doubts, constituted a bench of nine judges to see whether the two judgements, MP Sharma v Satish Chandra (1950) and Kharak Singh v State of UP (1962) were right.

The Court initially wanted to conclude arguments within one day but given the constellation of senior advocates appearing on both sides, it now looks like that won’t happen. The petitioners, arguing that there is a fundamental right to privacy guaranteed under the Constitution, have not yet concluded and the Government, arguing otherwise, will begin its arguments tomorrow.

Obviously, the constitution of India does not use the word “privacy” anywhere or we would not be having this debate. As with the US Constitution, this is an aspect which has been judicially evolved over the years and in one sense, it is perhaps the right time to settle the debate once and for all. A nine-judge bench which states categorically one way or another will settle the law, not just for the Aadhar case but also for a whole range of issues ranging from beef bans, to prohibition laws and even the de-criminalisation of homosexuality.

A disclaimer: even if the court finds that there is no fundamental right to privacy does not mean you don’t have the legal right to privacy. Aspects of privacy are enshrined in many legislations in different ways – Section 228A of the Indian Penal Code which prohibits disclosure of the names of rape victims, Section 354C of the IPC which criminalizes making public images of women in an intimate setting, without their consent, Section 43 of the Information Technology Ac, 2000 which makes it illegal to hack into computer systems, et al. Irrespective of what the Supreme Court finds, individuals will still be able to sue others for breach of privacy and claim damages because privacy is also a common law right.

What the Supreme Court’s judgement will do is clarify whether, and to what extent, there are limits on the powers of the Government to take away the right to privacy of individuals by law.

The petitioners have argued that such a right is evident from a reading of Part III of the Constitution and that the older judgements had made misplaced observations about the right to privacy (you can read the detailed submissions here and here). They have pointed to the 40+judgements of the Supreme Court since the 1980s which have all recognised a fundamental right to privacy in different contexts, and argued that it would make no sense for the court to toss aside this in favour of judgments delivered in the 1950s.

It remains to be seen what the Government will argue in response and how they plan to justify the stand that there is no protection for the right to privacy under the Constitution, as the hearing continues tomorrow. As Bollywood is fond of saying, “picture abhi baaki hain…”

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