The Supreme Court’s ruling last week that privacy is a fundamental right is an “unsatisfactory resolution” and indicates that “the judiciary is taking over the functions of Parliament”, former attorney general Mukul Rohatgi told The Indian Express in an exclusive interview. Rohatgi, who stepped down as Attorney General in June after serving for three years, also said that had be been still been in office, he would have admitted that the government had lost the case. Edited excerpts:
You have described the judgment of the Supreme Court, confirming privacy as a fundamental right, as a case of “judicial overreach”. What were your main concerns when the petitioners pleaded for this?
The case began as a challenge to Aadhaar and from day one, the stand taken by me was that privacy was not a concept enshrined in the Constitution. And the views expressed by me were not my personal views but the view of the Government of India. I had listed all the benefits of Aadhaar and argued that biometrics is the only foolproof method for safe identification so that faked identity cards are not used and so on. I had argued that citizens are now subjected to so many types of regulations, and there should be no objection to Aadhaar.
In fact, as the then Attorney General, you asked for a nine-judge Bench to hear the matter since an eight-judge Bench had previously ruled on the issue. In retrospect, was this Bench necessary?
I heard the case till May, after which I stepped down as Attorney General. I then heard the government use the argument before the Supreme Court that privacy was a qualified law and a common law right, which in my view was a clear dilution of the arguments I had made.
So, were the arguments before the Supreme Court made by you in consultation with the government?
The emphasis of the whole case was on Aadhaar and the government left the law points to be argued to me and my team. But I was surprised by the reactions of various government functionaries and recall reading a tweet of someone who reacted to what the Law Minister had said on the privacy judgment. The tweet was that if the government was in agreement with the petitioners in the case, what was the dispute about?
Given the turn of events, do you feel your position has been compromised?
I would not say that my position has been compromised because I argued on facts till I was there and then on, it is the outlook of others. But yes, I still maintain what I had said during hearings in the case.
Following the ruling, were you taken aback by the reaction of the government and ministers, who applauded the judgment?
I was surprised. Because 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 that we haven’t won this case. The eight-judge Bench has been overruled and the Aadhaar issue has been left unresolved. So where is the question of winning?
Coming to the ruling, why do you feel the judgment will cause an overlap of functions of the Judiciary and Parliament and what practical problems could the government face with privacy being a fundamental right?
First of all, 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. Every case has to have a ‘lis’ (action or lawsuit), that is, it has to be a dispute between say, A and B. But in this case, by the end of it, there was no dispute and the whole Aadhaar issue has been left to a five-judge Bench.
So should the core issue of Aadhaar being an infringement on privacy also have been settled along with the question of whether privacy was a fundamental right?
Yes, the whole issue should have been decided together. This is a very unsatisfactory way of going about deciding cases. No doubt, it is a path-breaking judgment because they have virtually reversed the habeas corpus judgment (related to the Emergency in 1975) and reversed the judgment also on Article 377. But they have also collapsed the roles of the Judiciary, the Executive and Parliament and in my view, the aspirations of the people have to be formulated by their representatives in Parliament and they alone have the power to amend the Constitution. Here, the Judiciary is taking over the functions of Parliament and it is a very unsatisfactory resolution of the dispute. It is not the job of the court to add or subtract from the fundamental rights and this is clearly spelled out in the Constitution. This is an imperfect match.
What impact can the ruling have on in future interpretations of other fundamental rights?
This is an encroachment on the role of the legislature, 20 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. The government should not have diluted their stand in court because the inclusion or exclusion of fundamental rights is only the proviso of Parliament. And let me tell you, the issue of privacy was also hotly debated by the framers of our Constitution and by the Constituent Assembly, who took two years in drafting it. They had not described it as privacy by as “secrecy of correspondence”. And they had decided not to include it.