55 years after the Supreme Court last decided that privacy is not a basic right for citizens, a nine-judge constitution bench returned to the question today as it began hearing a case related to petitions challenging the Aadhaar scheme. A five-judge bench including Chief Justice of India JS Khehar yesterday said, "It is essential to decide whether there is right to privacy under the Indian constitution. We are of the view it has to be decided by a 9-judge bench."
1) Petitioners today held up Finance Minister Arun Jaitley's statement in parliament on privacy while moving the Aadhaar Bill in March. He had said that the government "was moving on a premise that privacy is an individual right aside from the court judgement. "Is privacy a fundamental right or not? The present bill presupposes and is based on a premise, and its too late in the day to contest that privacy is not a fundamental right. Privacy is not an absolute right, which is subjected to a restriction established by law on a fair and just procedure," he had said in the Rajya Sabha.
2) Representing the petitioners, senior lawyer Gopal Subramanium argued that the rights to life and liberty are pre-existing natural rights. "Privacy is embedded in both liberty and dignity. It is not a twilight right but the heart and soul of the constitution," he said.
3) The centre has said in court that the right to privacy is not in the constitution and is not a part of the right to life.
4) Yesterday, the government was told by one of the judges, Justice J Chelameswar, "Even freedom of press is not explicit in the constitution but courts have interpreted right to free speech includes freedom of expression of press."
5) The government's stand on privacy was criticized by opposition leaders like CPM's Sitaram Yechury, who tweeted this morning: "We have a government which believes in the right to privacy for top loan defaulters from being named, but not in Privacy for ordinary citizens. Right to Privacy of the ordinary Indian cannot be invaded by any government. Every Indian's dignity is important."
6) An eight-judge bench in 1954 and six-judge bench in 1962 had both ruled that there is no right to privacy. After the mid-1970s, benches of two and three judges have consistently taken the position that privacy is indeed a fundamental right.
7) Argued by a batch of petitions that whether privacy is a fundamental right is key to the challenge to the validity of the Aadhaar scheme that records personal data of millions of Indians.
8) The petitioners say data like iris scans and fingerprints taken by the state violates citizens' privacy. Then Attorney General Mukul Rohatgi in 2015, representing the government, told the Supreme Court that Indian citizens don't have a fundamental right to privacy under the constitution - an argument he repeated subsequently.
9) In past orders, the Supreme Court has expanded the right to life to include the right to clean air and even sleep.
10) If it is a fundamental right it does rule that privacy, then all cases relating to the Aadhaar scheme will go back to the original three-judge bench or five-judge bench.