Privacy and Aadhaar: Surely You’re Joking, Mr Rohatgi

Linking Aadhaar to multiple facets of life and the problems this entails cannot be swept under the rug.

Linking Aadhaar to multiple facets of life and the problems that entails, isn’t something that can be swept under the rug.

(Photo: The Quint)

Former Attorney General Mukul Rohatgi recently gave an interview to The Wire’s Anoo Bhuyan, in which he argued that he had never intended to challenge Indians’ right to privacy and (in a nutshell) why Aadhaar is the greatest thing in the world since sliced bread. He also made a number of observations about the 9-judge bench Supreme Court decision on 24 August, which had definitively recognised that Indian citizens have a fundamental right to privacy.

While the ex-AG is of course entitled to his own views, some of these appear to conflict with his own statements in court previously, or with settled positions of law. Here are five rebuttals to his comments.

1. “So if the court was anxious to decide this, the court should have decided the Aadhaar petitions first, from which this issue arose.”

The former AG suggested that the SC should have decided the Aadhaar petitions first, rather than passing a judgment on the abstract issue of privacy. According to him, you “don’t apply the law in a vacuum”, which is, of course, how legal questions are generally dealt with in disputes, where the relevant law is applied to the facts.

An obvious exception to this rule would be when it first needs to be decided what the law is in the first place. And who said that what the law was needed to be decided before any assessment of Aadhaar could take place?

In its order dated 11 August 2015, the 3-judge bench of the SC which had been hearing the challenges to Aadhaar noted that:

“Therefore, it is submitted by the learned Attorney General and Shri Venugopal that to settle the legal position, this batch of matters is required to be heard by a larger Bench of this Court as these matters throw up for debate important questions – (i) whether there is any “right to privacy” guaranteed under our Constitution. (ii) If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy.” (emphasis supplied)

And who was the “learned Attorney General” referred to here?

You guessed it – Mr Rohatgi.

Back in 2015, Mr Rohatgi himself pointed out that the broader questions of whether there was a fundamental right to privacy or not, and what such right encompassed, needed to be answered by a larger bench before the constitutionality of Aadhaar could be decided. 

Which was correct, since 2015’s Mr Rohatgi had been brandishing an 8-judge bench decision at the SC which he claimed trumped all subsequent judgments which said privacy was a fundamental right.

A 9-judge bench had to therefore decide those questions first, and only then could a regular Constitution Bench (5 judges) decide the Aadhaar petitions. So what is the point of this objection, exactly?

Also read: Right to Privacy: Why Did We Need 9 Judges To Debate It?

2. “I personally don’t agree with the fact that the court can find out or recreate or create new rights called fundamental rights.”

Mr Rohatgi also commented that because fundamental rights are a part of the Constitution, creation of new fundamental rights is something that only Parliament can do – and the SC therefore never had the authority to do what it did in its celebrated decision on 24 August.

Except, the Court did no such thing.

You see, the SC did not create a new fundamental right to privacy for us on 24 August. 

The 6 judgments in the case all painstakingly explained how the judges were of the unanimous opinion that privacy was already located in the Constitution, in Part III of the Constitution as a whole, and most prominently within Article 21 (right to life and personal liberty). The judges found that privacy was a key element of dignity, which is and always has been guaranteed under the Constitution of India, and that it was also a precondition to other fundamental rights such as freedom of expression, which have also always been part of the Constitution.

As a result, Justice Chandrachud expressly noted that, “Judicial recognition of the existence of a constitutional right to privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament.”

So why then is Mr Rohatgi saying that the Court created a new fundamental right? 

That’s because the text of the Constitution does not expressly include a right to privacy, which in his opinion means the Constitution doesn’t recognise a right to privacy (a position based on his reading of the old Kharak Singh and MP Sharma cases).

The problem with such a view, however, is that it ignores subsequent jurisprudence in the SC by an 11-judge bench, and more. This kind of argument was specifically addressed by the SC in its 24 August decision – the following refutation of the government’s argument by Justice Chelameshwar was both erudite and, as the kids these days approvingly say, “savage”:

“To sanctify an argument that whatever is not found in the text of the Constitution cannot become a part of the Constitution would be too primitive an understanding of the Constitution and contrary to settled canons of constitutional interpretation. Such an approach regarding the rights and liberties of citizens would be an affront to the collective wisdom of our people and the wisdom of the members of the Constituent Assembly.”

3. “So see all these safeguards and then take a call? So that’s why I said it was unsatisfactory they decided this in an abstract, academic fashion.”

One of the biggest takeaways from the interview is that the former AG is a huge fan of Aadhaar. He is also a fan of the Aadhaar Act 2016, which he claims recognises a right of privacy because of the built-in safeguards it includes.

As a result of these safeguards and the forthcoming data protection law, he believes that the Aadhaar scheme will be declared constitutional, because the greater good will outweigh any individual’s privacy concerns. 

It is also on this basis that he thinks that the Court should have not conducted its high-level inquiry into the law without facts.

The problem is, the presence or absence of safeguards in the Aadhaar Act or a data protection law is not going to be the crux of the issue in the case that decides the constitutionality of Aadhaar.

In making that determination, a crucial thing to confirm will be whether the Aadhaar scheme is a proportionate response to the public interest challenges India is facing, such as effective allocation of resources.

The need for biometrics, which would fall within the personal information that the privacy judgment places on a constitutionally protected pedestal, to be compulsorily collected and then linked to all those services, is something that no amount of safeguards will disguise.

And the fact of the matter is that this “abstract, academic fashion” was essential to decide what exactly the test would be, as the judgment emphasised the need to check proportionality of any infringement of the right to privacy, in addition to whether there was any legitimate need for the infringement.

4. “The label doesn’t matter.”

Of all the things Mr Rohatgi says in the interview, the most problematic is his assertion that the nature of the right to privacy would make no difference to the decision of the Court on Aadhaar.

To say that the label of right as ‘fundamental’ or not is irrelevant disregards well-established jurisprudence on the nature of the Constitution, the concept of judicial review, and the rights of Indian citizens.

The Union Government and the States that supported it in the privacy case clearly and unequivocally argued that privacy was a common law right rather than a fundamental right, because the label did matter.

When something is elevated to the status of a fundamental right, it becomes far more significant than a common law right. Common law rights are generally the rights you have against fellow persons, like suing them for nuisance, which can be modified and regulated by the government as and when they want to.

As Justice Chandrachud’s judgment explains, however:

“The protection of privacy by the Constitution liberates it, as it were, from the uncertainties of statutory law which, as we have noted, is subject to the range of legislative annulments open to a majoritarian government. Any abridgment must meet the requirements prescribed by Article 21, Article 19 or the relevant freedom. The Constitutional right is placed at a pedestal which embodies both a negative and a positive freedom. The negative freedom protects the individual from unwanted intrusion. As a positive freedom, it obliges the State to adopt suitable measures for protecting individual privacy.”

Thus, the State has a duty to respect fundamental rights, and not just in terms of stopping violations of privacy, but also in actively trying to protect it. 

Designating privacy as a fundamental right restricts the grounds on which the government can think about restricting it, and means that any encroachment of the right can be challenged in a constitutional court like the SC.

The label, therefore, does not just matter, but is of vital importance.

5. “As I said, the abstraction on privacy was my view, it was not the government of India.”

Mr Rohatgi insists that there was no contradiction between the government’s stance arguing privacy was not a fundamental right in the case before 9 judges, while at the same time making it a touchstone of their arguments in the WhatsApp case and the criminal defamation case.

In his view, despite the stance taken by him in court, the government cannot be said to have denied that Indians have a fundamental right to privacy.

To justify these two seemingly opposite stances, he says that he was the one who brought up the issue of privacy not being a fundamental right, not the government. This means that the statement by Law & Justice Minister Ravi Shankar Prasad after the verdict that the government had always supported privacy as a fundamental right would also not contradict the stance taken in court by Rohatgi and then KK Venugopal as Attorney General.

This is, however, not true. Rohatgi did not say what he said in 2015 to the court as a private citizen, he was doing it on behalf of the government, and the same applies to Venugopal this year. 

A lawyer’s submissions in court are not his or her personal view; the lawyer represents a client and so the views argued in court are those of the client.

Justice Bobde points this out explicitly in his opinion in the 24 August decision, mentioning that “the Union of India, through its Attorney General, raised the objection that Indians could claim no constitutional right of privacy”.

If the government didn’t want the judges hearing the case to believe that they were making this argument, and that this was all just Mr Rohatgi’s idea, it would perhaps have been a good idea for them to inform the court of this.

Why Does Any of This Matter?

Mr Rohatgi is no longer a functionary of the government, so it is understandable that some might argue that his statements don’t matter anymore. But the statements made by him are relevant because it was his intervention that led to the Aadhaar case not being decided more than two years ago, and still being open at present.

This has led to the expansion of Aadhaar’s linkage to multiple facets of life, and all the problems this has entailed, and is not something that can be swept under the carpet.

The statements made by him raise serious concerns about the government’s assessment of relevant constitutional law and the decision-making process that went into the arguing of the Aadhaar and privacy cases. This is particularly true because of the costs involved, and the fact that this forced the government to adopt the same position that privacy wasn’t a fundamental right, even though it allegedly didn’t believe in this anymore.

Lastly, the statements made by Mr Rohatgi also matter since they are connected with the misinformation which already plagues our discourse on Aadhaar (several instances of which were pointed out here), which is something we can ill-afford with so much at stake. One can only hope that any future interventions are more considered.

Mr Rohatgi’s Response to the Above Piece

“My submission that the case be decided by a larger bench in 2015 was not on the premise that the issue be decided in an abstract fashion devoid of facts. Further, only facts are given by the client. Legal submissions and the way to present a case in court is the privilege of a lawyer. Till the 8-judge judgement prevailed or for more than 50 years it was the view of the court that privacy was not recognised. I pointed this out to the bench and that's why the case was referred to a 9-judge bench.”