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Chief Justice of India J.S. Khehar’s establishing a five-judge constitution bench to hear arguments on Aadhaar as it pertains to the right to privacy is welcome. As we have noted before, for all the potential good the Aadhaar initiative can deliver when it comes to improving governance processes and outcomes, the legal ambiguity that has dogged it is unsustainable. So is the divergence that has crept in repeatedly in the executive and the judiciary’s approaches to Aadhaar.
There seems to be a fair chance the bench will refer the issue to a larger bench, given that only two days have been set aside for the hearing later this month. But it is at least a beginning. For the issue to be truly resolved, though, the government, not just the Supreme Court, will have to act. In 1954 and 1964, Supreme Court benches ruled that there was no fundamental right to privacy. This is untenable today when the increasing digitisation of governance and the economy have made citizens’ data vulnerable. The government has shown little intent regarding the privacy law it has said it is drafting. That must change now.