Right to Privacy: Why Did We Need 9 Judges To Debate It?
Does the Aadhaar scheme violate the Constitution?
Does the Aadhaar scheme violate the Constitution?(Photo: The Quint)

Right to Privacy: Why Did We Need 9 Judges To Debate It?

(A nine-judge Supreme Court bench, on 23 August, unanimously ruled that privacy is a fundamental right. In light of this development, The Quint is reposting this article from its archives.)

A nine-judge bench of the Supreme Court of India sat down on 19 July to conclusively determine whether Indian citizens have a fundamental right to privacy under the Constitution of India.

A Constitutional Bench of the Supreme Court was supposed to be sitting on 18 and 19 July to decide how many judges were required to ascertain the existence and status of the right to privacy in India (and how this ties into the Aadhaar scheme).

It was expected that after two days of arguments, the 5-judge bench would either decide to settle the matter itself, or refer it to a 9-judge bench to be constituted later. In light of the delay in even conducting this hearing, almost two years after it was supposed to be done urgently, legal experts feared a final decision on the existence of the right to privacy would be delayed even further

Instead, though the Chief Justice of India decided that the matter needed to be referred to a 9-judge bench, it was also decided that this would be done the very next day. The court will hear arguments from opponents of Aadhaar from 10:30 am to 1 pm, and the arguments of the government after lunch.

Also Read: Who Are The 9 Judges Who Will Decide the Fate of Right to Privacy?

By the end of tomorrow, we will know whether we have a Constitutionally guaranteed right to privacy.

But why is this happening now? What difference does the number of judges make? And what could this all mean for the future of Aadhaar?

How Did We Get Here?

On 12 July 2017, in a surprise move, new Attorney-General KK Venugopal and senior advocate Shyam Divan jointly asked for the early setting up of a Constitution Bench to examine the validity of Aadhaar in light of the right to privacy.

Way back in August 2015, the Supreme Court had said that the constitutionality of Aadhaar depended on the nature and status of the right to privacy. However, previous decisions of the Supreme Court had taken contradictory stances on whether a fundamental right to privacy existed at all, and what kind of restrictions could apply to it.

As a result, the Court had at the time directed that a Constitution Bench needed to be urgently established by the Chief Justice of India to determine the status of the right to privacy. In almost two years, successive Chief Justices failed to do this, delaying the issue despite repeated requests from opponents of Aadhaar.

The government was happy with this state of affairs as it allowed it to keep expanding the reach of Aadhaar, consistent with its argument that privacy was a common law right that could be taken away. Hence the surprise that the Attorney-General joined forces last week with Divan, who has argued for some of the most high-profile challenges to the linkage of Aadhaar (including the Aadhar-PAN case from a couple of months ago).

But it looks like Venugopal’s intervention has finally done the trick, with the Chief Justice immediately scheduling the hearing for this week. The Court has on numerous occasions recognised this need for an urgent hearing during challenges to the linking of Aadhaar this year, although till now this had not led to any results. 

Why Does the Number of Judges Matter?

The primary issue to be considered by the Court on Tuesday and Wednesday is whether the matter needs to be referred to a bench made up of more judges.

This matters because of the way precedent works in our legal system. The decisions of a superior court on a particular issue have to be followed by a lower court when looking at a similar issue. At its most basic, this means that trial courts and district courts are bound by decisions of the high courts and the Supreme Court, and high courts are bound by decisions of the Supreme Court.

So what binds the Supreme Court then? The simple answer is other decisions of the Supreme Court. But what does one do if one wishes to challenge such a decision? Till you reach the Supreme Court, you always have another court to approach if you disagree with the precedent. But there is no court higher than the Supreme Court.

Which is why we have the concept of benches with higher numbers. A decision by a bench of the Supreme Court can only be overruled by a Supreme Court bench of the same or greater size. The Supreme Court normally sits in benches of 2 or 3, so to avoid being bound by the decision of such a bench, you would need a bench of 3 judges or more.

The numbers only go up for cases involving the interpretation of the Constitution. According to Article 145 of the Constitution, the minimum number of judges for such cases is 5 – such benches are called Constitution Benches.

The bench for this week’s hearings will consist of 5 judges – CJI Khehar, Justice Chelameswar, Justice Bobde, Justice Chandrachud and Justice Abdul Nazeer. They will decide during these hearings whether the matter needs to be referred to a seven-judge or a nine-judge bench. This is required because two of the judgments in which existence of the right to privacy was previously considered were decided (in the negative) by a six-judge bench (Kharak Singh) and an eight-judge bench (MP Sharma).

The court needs to assess whether the key questions to be answered on privacy regarding Aadhaar could be affected by either of these two decisions, or both of them. If only MP Sharma or both are relevant, then a nine-judge bench would be required; if only Kharak Singh is relevant, a seven-judge bench would be required.

What Should we Expect?

Interestingly, Venugopal and Divan were on opposite sides of the divide back in 2015. Venugopal supported the contentions of then A-G Mukul Rohatgi that the right to privacy in India was doubtful because of the decisions in MP Sharma and Kharak Singh and needed a Constitution Bench to adjudicate on it. Divan argued that there was sufficient clarity on the law, and that a larger bench was unnecessary.

Another interesting connection is that two of the judges sitting this week – Justice Chelameshwar and Justice Bobde – were part of the bench that referred the matter back in 2015. This could prove important because in the 2015 order, the court held that if the decisions in MP Sharma and Kharak Singh were accepted as law,

the fundamental rights guaranteed under the Constitution of India and more particularly the right to liberty under Article 21 would be denuded of vigour and vitality.

What this means is that at least two of the judges hearing this matter believe that the right to privacy should exist in India. However, they also acknowledged that the cases establishing the right to privacy took up this stance in contradiction of the MP Sharma and Kharak Singh cases because they were decided by benches of lesser strength.

This does not automatically mean that the matter will be referred to a nine-judge bench. Back in 2015, Divan and Gopal Subramanium had both made detailed submissions to the effect that MP Sharma and Kharak Singh were not as binding as the government claimed. They argued that these cases were based on an older Supreme Court case which had itself been subsequently overruled. Which meant that they were not binding anymore either. Instead, the law was to be interpreted as per other seven-judge bench decisions which meant all the 2- and 3-judge bench decisions holding that the right to privacy existed, were correct.

In 2015, the three-judge bench could not take a call on this argument. This Constitution Bench, however, could agree that the law is settled enough for a five-judge bench to decide these issues, rather than refer it to more judges, and this is the key argument by Divan against the government this time around as well. 

A ‘safer’ option may have been for the matter to be referred to nine judges so that the matter can be settled conclusively, once and for all. Given how significant these issues are in light of modern technology, and how the right to privacy is being strengthened elsewhere around the world, there is no doubt that clarity is required on this.

But What About Aadhaar?

The relationship of the right to privacy with Aadhaar enrolment is what complicates everything.

The central government introduced the Aadhaar Act in 2016, and is aggressively expanding the list of things to which Aadhaar is to be mandatorily linked. The linkages to PAN, tax returns, bank accounts and mobile numbers are particularly egregious since they mean that the average citizen is essentially forced to get an Aadhaar card, despite having sufficient identification.

The linkage of Aadhar and PAN is being aggressively pushed by the government.
The linkage of Aadhar and PAN is being aggressively pushed by the government.
(Photo courtesy: www.incometaxindia.gov.in) 

The delay in the setting up of the Constitution Bench has meant that the validity of Aadhaar has become a bit of a fait accompli, since every day of delay saw more people enrolling for Aadhaar and linking their information.

Even if the court now finally finds that Aadhaar violates the right to privacy, the damage is already done with the vast majority of the population already enrolled, their information already held in insecure databases, and linked to public and private services.

Even though this would still mean it would not effectively protect everyone in the country, a decision by a five-judge bench that a right to privacy does exist and Aadhaar does violate this, could protect a decent number of people since PAN linkage is only currently mandatory for those who already have an Aadhaar number, and linkage to mobile phones and bank accounts is not necessary till the end of this year. It would also protect the rights of future citizens of this country.

No legal expert is willing to predict the way this case will go. We should all, of course, be praying that the court finds that there are 40 years of consistent judicial support for a fundamental right to privacy, and this cannot be taken away by the government so callously.

(If you’re interested in seeing how the matter progresses tomorrow, follow @prasanna_s and @gautambhatia88 on Twitter, from 10:30 am on 19 July for live tweets)

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