The judgement of the Supreme Court on Aadhaar on Tuesday is important in many ways. First, it does bring an end to one stage of the long legal struggle to ensure that citizen's rights and liberties are protected in the midst of technocratic developmental interventions of the government. Secondly, it shifts a very important dimension of the case - privacy - to a higher legal level. The court has referred the question of whether privacy is a fundamental right to a larger constitutional bench, which would, it is expected, bring a closure on the matter. In this note, I will try to explain two aspects of Tuesday's judgement: on privacy; and on the enforced compulsoriness of Aadhaar.

First, on privacy and constitutional rights.

The government's argument in the Supreme Court that privacy is not a fundamental right under Article 21 was based on judgements by larger benches in two earlier cases: (1) M.P. Sharma & Others v. Satish Chandra & Others, 1954 and (2) Kharak Singh v. State of U.P. & Others, 1963. Opposing the government's view, the petitioners argued that in other cases that followed these two cases {such as Gobind v. State of M.P. & Another (1975); R. Rajagopal & Another v. State of Tamil Nadu & Others (1994); and PUCL v. Union of India & Another (1997)}, Supreme Court benches have ruled that the right to privacy is indeed a fundamental right ingrained in Article 21, which provides right to liberty to Indian citizens.

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In a major statement, the current bench has written that: "If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality." In other words, the bench has clearly ruled that if privacy is not a fundamental right under Article 21, then Article 21 itself stands completely "denuded of vigour and vitality". This is a very important gain from the judgement.


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