IMPORTANT POINT
When there is difference of opinion between two Benches the matter should be referred to a larger Bench.

Headnote:(a) Constitution of India – Articles 143 and 145 – Any reference under Article 143 for interpretation of Constitution – Should be decided by a Bench comprised at least by five Judges as provided in Article 145(3). (Para 7)
       (b) Constitution of India – Article 21 – Right to privacy – Aadhar – Scheme for collection of biometric data – Challenged on the ground of being violative of the “right to privacy” implied under Article 21 – Right to privacy – Whether a fundamental or Constitutional right – Courts differing – M.P. Sharma and Kharak Singh – Require reconsideration – Issue needs to be decided authoritatively by a Bench of appropriate strength. (Para 13, 14)
       AIR 1954 SC 300; AIR 1963 SC 1295; (1975) 2 SCC 148; (1994) 6 SCC 632; (1997) 1 SCC 301; (1978) 1 SCC 248; AIR 1950 SC 27; (1970) 1 SCC 248 – Referred
       Facts of the case:
       In this batch of matters, a scheme propounded by the Government of India popularly known as “Aadhaar Card Scheme” is under attack on various counts. Under the said scheme the Government of India is collecting and compiling both the demographic and biometric data of the residents of this country to be used for various purposes.
       One of the grounds of attack on the scheme is that the very collection of such biometric data is violative of the “right to privacy” implied under Article 21 of the Constitution of India as also other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.
       Finding of the Court:
       Matter needs to be reconsidered by a larger Bench of appropriate strength.
       Result: Matter referred to larger Bench.

Order

1. In this batch of matters, a scheme propounded by the Government of India popularly known as “Aadhaar Card Scheme” is under attack on various counts. For the purpose of this order, it is not necessary for us to go into the details of the nature of the scheme and the various counts on which the scheme is attacked. Suffice it to say that under the said scheme the Government of India is collecting and compiling both the demographic and biometric data of the residents of this country to be used for various purposes, the details of which are not relevant at present.

2. One of the grounds of attack on the scheme is that the very collection of such biometric data is violative of the “right to privacy”. Some of the petitioners assert that the right to privacy is implied under Article 21 of the Constitution of India while other petitioners assert that such a right emanates not only from Article 21 but also from various other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.

3. When the matter was taken up for hearing, Shri Mukul Rohatgi, learned Attorney General made a submission that in view of the judgments of this Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by Eight and Six Judges respectively) the legal position regarding the existence of the fundamental right to privacy is doubtful. Further, the learned Attorney General also submitted that in a catena of decisions of this Court rendered subsequently, this Court referred to “right to privacy”, contrary to the judgments in the abovementioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions.

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. [See: M.P. Singh & Others v. Satish Chandra & Others, AIR 1954 SC 300, page 306 para 18]

“… Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.” [See: Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, page 1303 para 20] [Emphasis supplied]

4. Learned Attorney General submitted that such impermissible divergence of opinion commenced with the judgment of this Court in Gobind v. State of M.P. & Another, (1975) 2 SCC 148, which formed the basis for the subsequent decision of this Court wherein the “right to privacy” is asserted or at least referred to. The most important of such cases are R. Rajagopal & Another v. State of Tamil Nadu & Others, (1994) 6 SCC 632 (popularly known as Auto Shanker’s case) and People’s Union for Civil Liberties (PUCL) v. Union of India & Another, (1997) 1 SCC 301.

5. All the judgments referred to above were rendered by smaller Benches of two or three Judges.

6. Shri K.K. Venugopal, learned senior counsel appearing for one of the respondents submitted that the decision of this Court in Gobind (supra) is not consistent with the decisions of this Court in M.P. Sharma and Kharak Singh. He submitted that such divergence is also noticed by the academicians, Shri F.S. Nariman, Senior Advocate of this Court and Shri A.M. Bhattacharjee [A.M. Bhattacharjee , Equality, Liberty & Property under the Constitution of India, (Eastern

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2015 Supreme(SC) 783

IMPORTANT POINTWhen there is difference of opinion between two Benches the matter should be referred to a larger Bench.

Cases Referred (8)

IMPORTANT POINT
When there is difference of opinion between two Benches the matter should be referred to a larger Bench.