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.
On 12 July, a total of 22 cases were tagged by the apex court to be heard by the five-judge bench.
The SC decision to form the 9-judge bench came while hearing petitions on linking of PAN card with Aadhaar.
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 Centre has told the Supreme Court that the special status accorded to Jammu and Kashmir is a legal issue and should be decided by a larger bench.
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Is the right to privacy a fundamental right?
"During the course of hearing today it has become essential for us to determine whether right to privacy is a fundamental right under the Constitution", a five-judge bench headed by Chief Justice of India JS Khehar said.
"If yes, then what would be contours of the right to privacy", the bench had said while referring the matter to the then CJI for setting up the larger bench.
"One can't overlook the constant view held by smaller benches in their later judgments holding right to privacy is a fundamental right".
If the nine-judge bench decides that privacy is a fundamental right then all cases relating to the Aadhaar scheme will go back to the original three-judge bench. To bolster his argument, Venugopal cited the 1963 Kharak Singh case to emphasise that there is no right to privacy under Article 21 and Article 19 (1) (d) of the Constitution. "If this court feels that there must be clarity on this subject, only a Constitution Bench can decide", the AG had said.
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