While hearing the challenge to the Aadhaar Act, the Supreme Court decided that it must first consider the question of whether the right to privacy is a fundamental right guaranteed by the Constitution.

The judges noted that two earlier judgements of the court — M P Sharma’s case in 1954 and Kharak Singh’s case in 1962 — had held that privacy was not a fundamental right.

A nine-judge Bench will now decide this question.

What were the M P Sharmaand Kharak Singh cases?

M P Sharma & Others vsSatish Chandra, District Magistrate, Delhi & Others
The case related to search and seizure of documents of some Dalmia group companies following investigations into the affairs of MsDalmia Jain Airways Ltd, a group concern, which was registered in July 1946 and went into liquidation in June 1952. The probe indicated malpractices within the company and attempts to conceal from shareholders the actual state of affairs by submitting false accounts and balance sheets.

The DM issued the warrants, and searches were carried out. Voluminous records were seized. In writ petitions before the Supreme Court, the aggrieved parties challenged the constitutional validity of the searches saying their private records were taken away, and claimed that it violated their fundamental rights under Articles 19(1)(f) — right to acquire, hold and dispose of property — and 20(3) — protection against self incrimination.

In its judgment, the eight-judge Bench held that “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.

Kharak Singh vs The State of U P & Others (December 18, 1962)
Petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”.

This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorised six measures of “surveillance”:
(a) secret picketing of the house or approaches to the house of suspects;

(b) domiciliary visits at night;

(c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation;

(d) reporting by constables and chaukidars of movements and absence from home;

(e) verification of movements and absences by means of inquiry slips;

(f) collection and record on a history sheet of all information bearing on conduct.

In his writ petition, Singh challenged the constitutional validity of Chapter XX, and the powers conferred upon police officials thereunder on the ground that they violated his fundamental rights under Articles 19(1)(d) — right to freedom of movement — and 21 — protection of life and personal liberty.

His petition was adjudicated by a six-judge Bench which struck down Clause (b) — domiciliary visits at night — of Regulation 236, but upheld the rest.

The Bench also held that “the right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights)”.

(Adapted from the Indian Express)