A rare 9-judge bench of the Supreme Court said the right to privacy is not absolute, making its first observations on Wednesday as it began hearing on an issue that could have a sweeping impact on issues such as the Aadhaar scheme and the law criminalising homosexuality.

Led by the Chief Justice of India JS Khehar, the Constitution bench said that if right to privacy is defined as a fundamental right, the top court’s 2013 ruling upholding Section 377 — which criminalises homosexuality — “falls”.

The bench began the process to decide if privacy can be regarded as a fundamental right guaranteed to all Indians, a question that arose from the legal challenge to the Aadhaar programme that activists say impinges on the right to privacy.

“If privacy is about right to make a choice, then choice in what areas? Family, sexual orientation, gender identity, surveillance, what all?” it observed.

The judges will revisit previous rulings by the Supreme Court— one by an eight-judge bench in 1954 and the other by a six-judge bench in 1962 — to study if they were the correct interpretation of constitutional provisions. Both rulings rejected the idea that privacy was a fundamental right.

Privacy was one of the grounds on which the Delhi High Court had struck down Section 377 in 2012, but its ruling was overturned by the Supreme Court a year later. A curative petition against the ruling filed by NGO Naz Foundation has raised the issue of right to privacy afresh.

“If yes (i.e. if right to privacy is a fundamental right), then Naz Foundation (ruling) falls,” Justice DY Chandrachud –a member of the bench – said to the lawyers who argued privacy was a facet of liberty, which the Constitution guarantees.

In addition to the Section 377 case, the SC’s ruling on privacy will impact a case against mobile communication application WhatsApp in which petitioners have opposed its policy to share user data with its parent Facebook. Read more via Hindustan Times