Referring the matter to the larger bench, a five-judge Constitution bench headed by Chief Justice JS Khehar said, "During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution."
"The determination of this question would essentially entail whether the decision recorded by this Court (in 1954) by an eight-Judge Constitution bench, and also by a six-Judge Constitution bench (in 1962), that there is no such fundamental right, is the correct expression of the constitutional position," said the bench of five judges in their order on Tuesday.
Hearing by the nine-judge Constitution bench will start on Wednesday. Though the hearing is expected to conclude on Wednesday itself, the possibility of its getting extended for another day is not being ruled out.
The court permitted both the sides the liberty to submit their written briefs. Besides Chief Justice Khehar, other judges on the bench are Justice J Chelameswar, Justice SA Bobde, Justice DY Chandrachud and Justice S Abdul Nazeer.
The top court said the nine-judge bench will also examine the correctness of the position taken by an eight-judge bench in 1954, and subsequently by a six-judge bench in 1962. The court said both in 1954 and 1962, the benches had held that privacy is a not a fundamental right.
However, after the mid-1970s, benches of two- and three -judges had consistently taken the position that privacy is a fundamental right.
At the outset of the hearing, Justice Chelameswar said the first issue that was required to be examined is the question whether privacy was a fundamental right or just a mere right. The court was not impressed when Attorney General KK Venugopal told the bench that the right to privacy was a fundamental right under the common law, but not so in India as it is not there in the Constitution.
"It is illogical," Justice Chelameswar said, referring to Mr Venugopal's submission.
The issue whether privacy is a fundamental right is pivotal to the challenge to the validity of the Aadhaar programme. Various petitioners in a batch of petitions have contended that collection of personal information - like iris scan and fingerprints - under Aadhaar violated their right to privacy.
The apex court said after the nine-judge bench decides whether right to privacy was a fundamental right or not, then all matters relating to the Aadhaar scheme will go back to the original three-judge bench.
The last such hearing by a nine-judge Constitution bench took place in 2016 in which the top court had upheld the entry tax on goods entering a town or a city (octroi).
Prior to that, a nine-judge bench had in 2007 said that law falling under the Ninth Schedule of the Constitution too can be examined by the court. Before that any law included in the Ninth Schedule was immune from judicial scrutiny.