Is the right to privacy a Fundamental Right?

The context

A nine-judge constitutional bench of the Supreme Court of India is now hearing a bunch of petitions to decide on the matter whether right to privacy come under the Fundamental Rights guaranteed by the Constitution of India.

These petitions have come before the court because the petitioners felt that the unique identification number and the associated Aadhaar card in India are breach to privacy of the citizens of India.
The petitioners have argued that right to privacy is part of Article 21, the right to life, and interspersed in Article 19, though not explicitly stated in the Constitution.

The petitioners say that the government is breaching the private space of the citizens by making it mandatory to furnish biometric and other private information in order to register for Aadhaar.
They have also raised concerns on a possible breach in the Aadhaar database, the private information being misused by the different government agencies etc.

The Government, on the other hand, has admitted that in rolling for the Aadhaar card requires the citizens to furnish biometric and other private information. But, at the same time it has cited some of the earlier judgements of the Supreme Court that the right to privacy does not come under the Right to Life as guaranteed by the Constitution.

The legal and constitutional position
In India, so far, there is no clarity on whether right to privacy come under the scope of fundamental rights. India also does not have a law on privacy. The issue has been brought before the Supreme Court on earlier occasions.

This has been a hotly debated issue and so far there has been no consensus on this.

Judgements refuting right to privacy as a fundamental rights

Two judgments of the Supreme Court —

1. the M.P. Sharma case verdict pronounced by an eight-judge Bench in 1954

2. the Kharak Singh case verdict of 1962 by a six-judge Bench

3. Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right.

These judgements have dominated the judicial dialogue on privacy since Independence.
Judgements acknowledging right to privacy coming under the scope of fundamental rights

Smaller Supreme Court Benches have, over the years, differed and held that privacy is indeed basic to our Constitution and a fundamental right.

Here, it needs to be underlined that the judgements refuting right to privacy as a fundamental right were delivered by larger benches and therefore the arithmetical supremacy of the MP Sharma and Kharak Singh cases continues to hold fort.

Importance of constituting a nine judge bench to hear the matter

This time, the Supreme Court of India intends to settle the issue finally. It is for this reason, the Supreme Court has constituted a nine judge bench to hear the matter. Once this bench delivers its verdict, it will be the largest ever bench delivering the judgement on whether right to privacy is one of the fundamental rights or not.
Such a ruling will have overriding effect if it even if it disagrees with the earlier M.P. Sharma case verdict pronounced by an eight-judge Bench in 1954.

Does Aadhaar cause a breach of privacy?

There are certain provisions in the Aadhaar Act that was legislated last year which raise a concern on privacy issues.
Though the Act prohibits any official from revealing information in the data repository to anyone but there are exceptions which cause unease.

Two provisions are particularly troubling.
1. The first is Section 29(4) , by which no Aadhaar number or biometric information will be made public “except for the purposes as may be specified by regulations”.

2. The second is Section(33) , under which the inbuilt confidentiality clauses will not stand when it concerns national security.

It is also being said that in order to be useful and effective, Aadhaar data might have to be used alongside other databases. That could trigger further privacy questions.
Needless to say, without robust laws to protect their data, citizens would be rendered vulnerable.