55 years after the Supreme Court last decided that privacy is not a basic right for citizens, a nine-judge constitution bench will return to the question as it begins hearing today 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."
The centre said in court that the right to privacy is not in the constitution and is not a part of the right to life. But petitions say the right to privacy is inherent in the constitution.
One of the judges remarked, "Even freedom of press is not explicit in the constitution but courts have interpreted right to free speech includes freedom of expression of press."
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."
An eight-judge bench in 1954 and six-judge bench in 1962 had both ruled that there is no right to privacy. Whether they were correct should be decided by a larger bench of nine judges, the top court said.
After the mid-1970s, benches of two and three judges have consistently taken the position that privacy is indeed a fundamental right.
A batch of petitions argues 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.
The petitioners say data like iris scans and fingerprints taken by the state violates citizens' privacy. In 2015, then Attorney General Mukul Rohatgi, 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.
In past orders, the Supreme Court has expanded the right to life to include the right to clean air and even sleep.
If it does rule that privacy is a fundamental right, then all cases relating to the Aadhaar scheme will go back to the original three-judge bench or five-judge bench.