Former Attorney General Mukul Rohatgi: I would have said we lost privacy case

New Delhi: Mukul Rohatgi, Former Attorney General, who stepped down as the government’s top law officer in June, has said he was quite amused with the government feedback on the Supreme Court’s August 24 ruling making privacy a fundamental right.

According to Rohatgi, he witnessed a clear ‘’dilution” of the government’s stand before the nine-judge Bench and that this should not have been done.

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Talking to mediapersons, 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.”

Rohatgi further went on to add that had he still been in office as Attorney General, he would have admitted that the government had lost the case.

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He said he maintained the point of 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?’’

Two years back, at the time of 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.

Rohatgi, however, had quit the top law officer’s post before the nine-judge bench was set up to hear the privacy case in July. At the time of 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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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.”