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If I were still A-G, I would have said we lost privacy case: Mukul Rohatgi

Rohatgi said, “The government should not have diluted their stand in court because the inclusion or exclusion of fundamental rights is only the proviso of Parliament... Here, the judiciary is taking over the functions of Parliament and it is a very unsatisfactory resolution of the dispute.”

Written by Ritu Sarin | New Delhi | Updated: August 28, 2017 2:05 am
right to privacy, fundamental right, mukul rohatgi, mukul rohatgi right to privacy, mukul rohatgi right to privacy remark, india news Former Attorney General Mukul Rohatgi

Former Attorney General Mukul Rohatgi, who stepped down as the government’s top law officer in June, has said he was “surprised” with the reaction of the government on the Supreme Court’s August 24 ruling making privacy a fundamental right. He said he had noticed a clear ‘’dilution” of the government’s stand before the nine-judge Bench and that this should not have been done.

In an interview with The Sunday Express, Rohatgi said, “The government should not have diluted their stand in court because the inclusion or exclusion of fundamental rights is only the proviso of Parliament… Here, the judiciary is taking over the functions of Parliament and it is a very unsatisfactory resolution of the dispute.”

He added that had he still been in office as Attorney General, he would have admitted that the government had lost the case. He said he maintained the view he had taken in court that the framers of the Constitution did not intend to make privacy a fundamental right. “If I was there (as Attorney General), I would have said we have lost the case. As lawyers, we are used to winning and losing cases. Because the fact is, we haven’t won this case. The eight-judge bench has been overruled (an eight-judge bench had ruled in 1954 that the right to privacy cannot be a fundamental right) and the Aadhaar issue has been left unresolved. So where is the question of winning?’’

In 2015, during the hearing on petitions challenging the Aadhaar Act, Rohatgi, then Attorney General, had cited previous judgments to argue in the apex court that the Constitution did not assign right to privacy that status. He, however, had quit the top law officer’s post before the nine-judge bench was set up to hear the privacy case in July. During the hearing in the privacy case, the new Attorney General, K K Venugopal, had told the court that privacy could be a “wholly qualified” fundamental right.

READ | Privacy ruling encroachment on role of legislature, says Rohatgi

Moreover, Rohatgi said the privacy ruling may be a “path-breaking” judgment but it would also open up a “Pandora’s box” since it could lead to a clamour for other rights to be included as fundamental rights. He elaborated, “This is an encroachment on the role of the legislature. Twenty more fundamental rights can be included in this manner. For example, there can be a challenge for the right of getting good medical treatment to be converted into a fundamental right. This is likely to open up a Pandora’s box.”

Describing the manner in which the Aadhaar case was dovetailed with the right to privacy and the latter ruling coming first, Rohatgi said the sequence of events have been a “strange exercise”. As he put it, “In my view, no case should be decided without a reference to facts. There are no facts in the ruling of August 24. This has been a strange exercise. The whole issue should have been decided together. This is a very unsatisfactory way of going about deciding cases.”

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  1. R
    Reader
    Aug 28, 2017 at 6:30 am
    Why the United Kingdom's biometrics-linked National Ident-ity Card project to create a centralized register of sensitive information about residents similar to Aadhaar was scrapped in 2010?? The reasons were the massive threat posed to the privacy of people, the possibility of a surveillance state, the dangers of maintaining such a huge centralized repository of sensitive information, and the purposes it could be used for, and the dangers of such a centralized database being hacked. The other reasons were the unreliability of such a large-scale biometric verification processes, and the ethics of using biometric identification.
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    1. R
      Reader
      Aug 28, 2017 at 6:30 am
      The US Social Security Number (SSN) has no biometric details, no photograph, no physical description and no birth date. All it does is confirm that a particular number has been issued to a particular name. Instead, a driver's license or state ID card is used as an identification for adults. The US government does not collect the biometric details of its own citizens.
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      1. R
        Reader
        Aug 28, 2017 at 6:29 am
        The privacy laws of the United States deal with several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain. The essence of the law derives from a right to privacy, defined broadly as 'the right to be let alone.'
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        1. Sudheer Thaakur
          Aug 28, 2017 at 12:50 am
          SC is the new Parliament. Is there some way Parliament can push back to regain its role , position and prestige? Given our fractured polity with opposition for opposition sake with no care or concern for prestige and value of the ins ution whom they represent, I have no hopes. On other hand SC shows a great sense of self preservation and unity. Remember NJAC judgment. In a few years SC will legislate and Parliament will be fish market. Law is not what cons ution says. Law is what latest judge has said till another judge contradicts it to say something different.
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          1. Sudheer Thaakur
            Aug 28, 2017 at 12:49 am
            I wonder how long will it be for Indian Parliament to become irrelevant as a law making body! Today SC has read into cons ution a ‘fundamental right’ that was explicitly discussed and declined by the Cons uent Assembly. SC has become a freewheeling body doing what they like unrestrained by separation between 3 spheres of governance. Two days ago it decided not to interfere in triple talaq case and instead shifted responsibility to Parliament to legislate. It had shirked responsibility in Sec377. Sometimes to declare a law as null and void on altar of arbitrariness – of which judge is the sole arbiter, sometimes to recommend to Parliament to make laws and at other times read into law which might have been intended by legislators. Now the ultimate –arrogate the right to make a law which was explicitly discussed and declined. Why do we need a Parliament to make laws?
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