The Supreme Court on Thursday will pronounce its verdict whether right to privacy is a fundamental right – that would have a bearing on the challenge to the validity of the Aadhaar scheme on the grounds of its being violative of the right to privacy.

It is also likely to have a bearing on the challenge to WhatsApp’s new privacy policy. The top court is hearing a challenge to the Delhi High Court’s September 23, 2016 order by which it allowed WhatsApp to roll out its new privacy policy but stopped it from sharing the data of its users collected up to September 25, 2016, with Facebook or any other related company.

The nine-judge Constitution bench comprising Chief Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice SA Bobde, Justice RK Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice DY Chandrachud, Justice Sanjay Kishan Kaul, and Justice S Abdul Nazeer had reserved the verdict on August 2 after hearing the matter for two weeks. The Hearing that commenced on July 19, concluded on August 2.

Notably, earlier in July this year, Centre told the Supreme Court that the right to privacy was a fundamental right but not all its facets will be covered under it.

Attorney General KK Venugopal told a nine-judge constitution bench headed by Chief Justice JS Khehar “There is a fundamental right to privacy, but it is a wholly qualified right since the right to privacy consists of various aspects and is a sub-species of the right to liberty, every aspect of it will not qualify as a fundamental right”.

The entire issue was rooted in a reference by a three-judge bench that was hearing a challenge to the constitutional validity of the Aadhaar Scheme on the grounds of its being violative of the fundamental right to privacy.

The petitioners included former Karnataka High Court Judge KS Puttaswamy, first Chairperson of National Commission for Protection of Child Rights and Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon, and others.

However, the Centre contested their position citing two judgments of 1954 (by eight judges) and 1962 (by six judges) which had held that the right to privacy was not a fundamental right.

The Centre had contended that though after the mid-seventies several judgments by the benches of strength of two or three judges had held that right to privacy was fundamental but it was the judgment of 1954 and 1962 by the larger benches that holds the ground.

It was in this background that the nine-judges constitution bench heard the matter to examine the correctness or otherwise of the 1954 and 1962 judgments and the nature of the right to privacy – whether fundamental or not.

The hearing saw a partisan divide with the Centre and BJP-ruled Maharashtra and Gujarat contending that right to privacy was not a fundamental right and those ruled by the Congress – Karnataka, Punjab, Himachal Pradesh, Puducherry and TMC in West Bengal asserting that privacy was a fundamental right.

The Unique Identification Authority of India too said that privacy was not a fundamental right and there were sufficient safeguards to protect data collected from the people – their iris scan and finger prints.

After the nine judges bench decides whether right to privacy is a fundamental right or not, then a regular bench will hear the challenge to the validity of the Aadhaar scheme.

First Published | 24 August 2017 8:03 AM
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