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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.”

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.

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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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