When the State Sought to Muzzle Privacy, U-Turn Now Only to Accommodate SC Verdict
MAJOR GENERAL S.G.VOMBATKERE
On July 22,2015, Attorney General (AG) Mukul
Rohatgi representing the Union of India (Centre, hereinafter) argued before a
3-Judge Bench (Justices J.Chelameshwar, S.A.Bobde & C.Nagappan) considering
a batch of petitions challenging Aadhaar, that:
* the Constitution-makers did not intend to make the right to privacy a
* 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 3-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
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
That said, in a landmark ruling on August 24, the 9-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 9-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 frighteningly,
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, 25 August 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
BJP chief Amit Shah also made a U-turn when he declared [The Hindu, Bengaluru,
Page10, 25 August 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 judgment 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 5-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.
S.G. Vombatkere, VSM, retired as Additional DG Discipline & Vigilance in
Army HQ AG's Branch.He is a petitioner in the Right to Privacy case)