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In a recent judgment, Supreme Court has referred an importance matter involving interpretation of the Constitution regarding the existence of the fundamental right to privacy to the Chief Justice for constitution of a Larger Bench on the matter.

Case Details:
WP (Civil) No. 494/2012, 
Justice K.S. Puttaswamy (Retd.) & Another … Petitioners
vs
Union of India & Others … Respondents
Date of Order: 11-08-2015
Coram: Justice Chelameswar, Justice S.A. Bobde, Justice C. Nagappan

Objections Raised before the Court:
The collection of biometric data for Aadhaar Card Scheme of Government of India is violative of the “right to privacy”. It was asserted that the right to privacy is implied under Article 21 and also it from various other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.

Important Case Laws Referenced:
Gobind v. State of M.P. & Another, (1975) 2 SCC 148
R. Rajagopal & Another v. State of Tamil Nadu & Others, (1994) 6 SCC 632
Maneka Gandhi v. Union of India & Another, (1978) 1 SCC 248
People’s Union for Civil Liberties (PUCL) v. Union of India & Another, (1997) 1 SCC 301

Contentions of the Government:
That Eight and Six Judges bench of Supreme Court has held that the legal position regarding the existence of the fundamental right to privacy is doubtful.

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.
[M.P. Singh & Others v. Satish Chandra & Others, AIR 1954 SC 300, page 306 para 18]

“… Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
[Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, page 1303 para 20]

However in subsequent judgments, Gobind, R. Rajagopal and PUCL Supreme Court has referred to “right to privacy”, and this has resulted in a jurisprudentially impermissible divergence of judicial opinions. It was said that to settle the legal position, this matters is required to be heard by a larger Bench of at least five Judges in view of the mandate contained under Article 145(3)2 of the Constitution of India.

Respondents Contentions:
Respondents vehemently opposed the suggestion that this matters be heard by a larger bench. It was argued that that the observations made in M.P. Sharma regarding the absence of right to privacy under our Constitution are not part of ratio decidendi of that case. It was also stated that the observation made in Kharak Singh  at best can be construed only to mean that there is no fundamental right of privacy against the State’s authority to keep surveillance on the activities of a person.

Both M.P. Sharma  and Kharak Singh came to be decided on an interpretation of the Constitution based on the principles expounded in A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Such principles themselves came to be declared wrong by a larger Bench of Supreme Court in Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248

Excerpts from the Judgment:

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 and Kharak Singh 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.

Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.

We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.

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Supreme Court-Interpretation of Indian Constitution regarding Existence of the fundamental right to Privacy referred to Larger Bench | 12-08-2015 |