Supreme court of India(SCI) 9-Judge Bench to Rule if Privacy is a Fundamental Right Tuesday July 18,2017

A  9-judge Supreme court of India(SCI) Bench is set to rule whether there is a fundamental right to privacy under the Indian Constitution.

The issue requires to be settled after 67 years of a Constitution Bench judgment since a clutch of petitions have claimed Aadhaar violates right to privacy.

With right to privacy being pitched as a fundamental right by the petitioners, a five-judge bench led by Chief Justice of India J S Khehar on Tuesday July 18,2017 referred the contentious issue to a nine-judge bench for an authoritative ruling.

Since an eight-judge bench verdict of 1950 held there is no fundamental right to privacy, the CJI-led court on Tuesday decided to get the subject examined by a larger bench.

“Right to privacy is a very, very important issue. It is essential to decide whether there is fundamental right to privacy,” said the CJI.

The bench added that the correctness of the two previous judgments in cases of MP Sharma (1950) and Khadak Singh (1960) will be scutinised by the nine-judge bench.

This bench will sit on Wednesday and is likely to conclude the hearing in a day. Once the nine-judge bench decides the sanctity of the right to privacy, the case will come back to the five-judge bench to examine petitioners' allegation that Aadhaar breaches right to privacy.

During the hearing, Attorney General K K Venugopal submitted that the court has to first decide whether it wishes to deal with arguments on the right to privacy. “And if this court wants to examine whether right to privacy is a fundamental right or not, it will have to go to a nine-judge bench since there is already a judgment on this point by an eight-judge bench,” said the AG.

Appearing for the petitioners, senior advocates Shyam Divan, Gopal Subramanium and Arvind Datar submitted it was incumbent to consider right to privacy as a fundamental right and therefore, a larger bench could take a call.

At this, the CJI observed that it was appropriate to refer this issue to a nine-judge bench and after a decision by the larger bench, the matter could be decided by the five judges.

Note

Fundamental Rights of Indian Constitution

• Part-III of the Indian constitution from article 12 to 32, contains fundamental rights.
• Part-III of the Indian constitution is called corner stone of the constitution and together with part-4 (directive principles and state policy) constitutes the conscience of the Constitution. This chapter of the Constitution has been described as the Magna Carta of India.
• Fundamental Rights are individual rights are enforced against the arbitrary invasion by the state except, in the case of Art. 15 (2), Article 17, Article 18(3-4), Article 23 and Article 24 where these can be enforced against private individuals also.
• FRs are not absolute rights and parliament could put reasonable restriction. The grounds for the restriction may be the advancement of SCs, STs, OBCs, women and children; general public order; decency, mortality, sovereignty & integrity of India; security of the state, friendly relations with foreign states, etc.
• According to Article 12, ‘the state’ includes the
  1. Government and Parliament of India.
  2. Government and Legislature of States.
  3. All local or state authorities such as municipalities, panchayats, district boards, improvement trusts, etc . within the territory of India or under the control of Government of India.

Classification of Fundamental rights

Originally Constitution provided for seven Fundamental Rights viz.

1. Right to equality (Article 14-18)
2. Right to freedom (Article 19-22)
3. Right against exploitation (Article 23-24)
4. Right to freedom of religion (Articles 25-28)
5. Cultural & educational rights (Articles 29-30)
6. Right to Property (Article 31)
7. Right to constitutional remedies (Article 32).

But, Right to property was removed from the list of the Fundamental Rights by the 44th Constitution Amendment Act, 1978 and after amendment, it was made legal right under Article 300-A in part-12 of the constitution.

At present there are only six Fundamental rights, six fundamental rights are described below in brief.

Right to Equality (Articles 14-18):

Article 14 (Equality before law):

• Article 14 says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Art. 14 is available to any person including legal persons viz. statutory corporation, companies, etc.
• Art. 14 is taken from the concept of equal protection of laws has been taken from the constitution of USA.
• The concept of the rule of law is a negative concept while the concept of equal protection of laws is a positive concept.
• The concept of equality before the law is equivalent to the second element of the concept of the ‘rule of law’ propounded by A.D. dicey, the British jurist. But certain exceptions to it are, the president of India, state governors, Public servants, Judges, Foreign diplomats, etc., who enjoy immunities, protections, and special privileges.

Article 15 (Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth):

• Article 15 says that the state shall not discriminate against only of religion, race, sex, place of birth or any of them.
• Under Article 15 (3) & (4), the government can make special provisions for women & children and for a group of citizens who are economically and socially backward.

Article 16 (Equality of opportunities in matters of public employment):

• Article 16 says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.

Article 17 (Abolition of Untouchability): Article 17 says that Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offense punishable by law.

Article 18 (Abolition of titles):

• Article 18 says that no title, not being a military or academic distinction, shall be conferred by the State. No citizen of India shall accept any title from any foreign state.
• The awards, Bharat Ratna, Padma Vibhuhan, Padma Bhusan and Padma Shri, called as The National Awards would not amount to title within the meaning of Article 18(i).

Right to Freedom (Articles 19-22):

Article 19 (Protection of certain rights regarding freedom of speech, etc.):
Article 19 says that all citizens shall have the right

1. to freedom of speech and expression.
2. To assemble peacefully and without arms.
3. To form associations or unions.
4. To move freely throughout the territory of India.
5. To practice any profession or to carry on any occupation, trade or business.

Article 20 (Protection in respect of conviction for offenses):
Article 20 says that state can impose reasonable restrictions on the groups of security of the state, friendly relations with foreign states, public order, decency, morality, contempt of court, defamation, etc.
Article 21 deals with Protection of life and personal liberty.
Article 21A states that that state shall provide free and compulsory education to all children of the age of 6-14 years.
Article 22 deals with protection against arrest and detention in certain cases.

Right Against Exploitation (Articles 23-24):

Article 23 deals with the prohibition of traffic in human beings and forced labour.
Article 24 deals with prohibition of employment of children in factories, etc.

Right to Freedom of Religion (Articles 25-28):

Article 25 deals with freedom of conscience and free profession, practice, and propagation of religion.
Article 26 deals with freedom to manage religious affairs.
Article 27 deals with freedom as to payment of taxes for promotion of any particular religion.
Article 28 deals with freedom as to attendance at religious instructions or religious worship in certain educational institutions.

Cultural and Educational Rights (Articles 29-30):

Article 29 deals with the protection of language, script, and culture of minorities.
Article 30 deals with the right of minorities to establish and administer educational institutions.

Right to Constitutional Remedies (Article 32):

Article 32 deals with the right to move to the supreme court for the enforcement of Fundamental Rights including the Writs of (i) Habeas corpus, (ii) Mandamus, (iii) Prohibition, (iv) Certiorari and (iv) Quo warranto.