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Tomorrow a nine-judge bench will hear to decide if right to privacy is a fundamental right

A nine-judge bench is being constituted tomorrow in the Supreme Court (SC) to decide on whether there is a fundamental right to privacy under the Indian Constitution. A host of other issues were raised in court today, but these will not be addressed tomorrow. Those will be heard later by a five-bench constitutional bench. A date for this hearing has not been decided as yet.

The SC order said (paraphrased): “It has become essential for us to determine whether there is a fundamental right to privacy under the Indian Constitution. The determination of this question essentially entails whether the precedence recorded by the court in MP Sharma by a eight-judge constitutional bench and also in Kharak Singh vs State of UP by a six-judge bench that there is no such fundamental right is the correct interpretation of the constitution. This issue deserves to be placed before a nine-judge bench tomorrow.”

The Union of India, represented by the Attorney General K.K. Venugopal, argued that the right to privacy falls under common law and is not a fundamental right.

The Attorney Genral cited the 1963 case Kharak Singh vs State of UP to reiterate that there is no right to privacy under Article 19(1)(d) and Article 21 of the Constitution. On further questioning by Justice Chandrachud and Justice Chelameswar, the AG said that matter should be referred to a bench of seven or nine judges to decided the correctness of the Kharak Singh case, because a five-judge bench cannot decide the case. The Chief Justice of India, Jagdish Singh Khehar then brought up the Maneka Gandhi case, which says that the judgment of the Kharak Singh case in regards to right to privacy stands overruled. The CJI also said that if a right falls in the residue of Article 21, then the court is not bound by the ruling in the Kharak SIngh case. But the AG countered by saying that the framers of the Constitution consciously chose not to include right to privacy. [Source: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11]

More updates to follow.

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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