The Great Face-saving U-Turn on Privacy

On July 22, 2015, the Attorney General (AG), Mukul Rohatgi, representing the Union of India (Centre, hereinafter), argued before a three-Judge Bench (Justices J.Chelameshwar, S.A. Bobde and C. Nagappan) considering a batch of petitions challenging Aadhaar, that # the Constitution-makers did not intend to make the right to privacy a fundamental right, # since there is no fundamental right to privacy, the petitions under Article 32 should be dismissed, # it is needless to call privacy a fundamental right since it is already common law right, and # the right to privacy is not absolute.

Following this, on August 6, 2015, with the Centre seeking a larger Bench to adjudicate on more fundamental issues, namely, whether privacy was a fundamental right, the three-Judge Bench reserved its judgment on the petitions challenging Aadhaar. This unambiguously indicates that the issue of whether or not privacy was a fundamental right was raised at the instance of the Centre.

The Centre has also argued before the Supreme Court that privacy is “so amorphous as to defy description†, that privacy is an imported value and is elitist, and rather scarily, that a person does not have right over his/her own body.

It is fair to assume that the AG prepares his arguments in full knowledge of the views and policies of the Centre, following regular discussions and briefings with the Union Minister for Law, especially in a matter of such great import as Aadhaar. The AG’s arguments and contentions in Court cannot but reflect the mind of the Centre. The AG, who is appointed by the Centre to represent it in the Supreme Court, cannot afford to speak at variance with the policies and views of the Centre.

That said, in a landmark ruling on August 24, the nine-Judge Bench of the Supreme Court unanimously ruled that privacy is a fundamental right, and that the right to privacy is protected as an intrinsic part of the right to life and personal liberty, as a part of the freedoms guaranteed by Part III of the Constitution. The nine-Judge Bench also ruled that the right to privacy was not absolute, but was subject to reasonable restrictions (as is every other fundamental right). This was an emphatic, vigorous and outright rejection of the Centre’s contentions on the matter of privacy.

This judgment was a victory for the “common man†who is a part of We the People, and it has set the equation between the State and the Citizen on an even keel, in times when the State is becoming overweeningly, sometimes frigh-teningly, superior to the Citizen.

While the Citizen celebrated the Supreme Court’s decision, the Centre strangely made a complete turn-around on its view regarding privacy. Union Law Minister Ravi Shankar Prasad, while welcoming the Supreme Court judgment on the right to privacy, claimed that it affirmed the government’s position; he is quoted [Deccan Herald, Bengaluru, Edit Page, August 25, 2017] as saying: “SC had affirmed what the Government had said ... Privacy should be a fundamental right subject to reasonable restrictions.†He also appeared on TV with the same assertion. BJP chief Amit Shah too made a U-turn when he declared [The Hindu, Bengaluru, page 10, August 25, 2017] that the judgment was in consonance with the NDA Government’s “vision and action†. We are still to hear from the Prime Minister, but clearly the Centre’s intention is to get the public to believe that it had always been in favour of privacy as a fundamental right.

Prasad’s statement that “SC had affirmed what the Government had said...†is disingenuous, even dishonest, especially since it comes from the Law Minister. Shah’s words that the judg-ment was in consonance with the Centre’s vision and action, may point to the political compulsion of deliberate obfuscation, and make one wonder what the “vision†is really about.

Instead of accepting the Supreme Court’s verdict with dignity and good grace, the Centre has resorted to unseemly face-saving by saying that it had supported the fundamental right to privacy. The Centre’s callow U-turn on privacy-as-a-fundamental-right is unbecoming to say the least, and cannot convince the millions who have followed the course of the petitions challenging Aadhaar. This U-turn could be a political mistake, unless the spin doctors manage to make black appear as white.

Even if the judiciary has taken note of the Centre’s reversal of stand on the issue of privacy, the common man can rest assured that the five-Judge Bench will hear the Centre’s forthcoming arguments on Aadhaar with all due seriousness, as befits our country’s highest judicial authority. One cannot help quoting Abraham Lincoln who, in September 1858, is supposed to have said: “You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time†, although in present times, even that may not be beyond the bounds of possibility.

Major General S.G. Vombatkere, VSM, retired as the Additional DG, Discipline and Vigilance in the Army HQ AG’s Branch. With over 520 published papers in national and international journals and seminars, his area of interest is strategic and development-related issues.