The nine judge constitution bench of Judges raised several questions observing that it was an unformed right not absolute. The Lawyers for the petitioners who challenged the Aadhaar scheme pointed out that the Finance Miniter Arun Jaitley had in the Rajya Sabha described privacy as a fundamental right in March last year. They challenged the Aadhaar scheme put up a strong defence to the right to privacy.
The Justice D.Y Chandrachud who is the part of the bench headed by Chief Justice J.S. Khehar also felt that everything falls under liberty not under the right to privacy that is a very small part of liberty. While the senior counsel Gopal Subramanium told the constitution bench, that the “Privacy is a part of personhood and a natural right. This is why the natural right is not conferred but only recognised by the Constitution.” He further added that right need not be carved out, it is there embedded in the right to liberty and dignity. And said that privacy is recognised as a fundamental right under Article 21 of the Constitution. The concept of privacy is embedded in honour of a person as well as liberty.
Subramanium said, that Jaitley had told the Rajya Sabha that “It is contended and now it is accepted that privacy is a part of personal liberty. So when Article 21 says, ‘No person shall be deprived of his right to life and liberty without procedure established by law’ then let us assume that privacy is a part of liberty and no person shall be deprived of his privacy without procedure established by law.”
Besides Justice Khehar, other judges on the bench are Justice J. Chelameswar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul and Justice S. Abdul Nazeer.