The former Attorney General Mukul Rohatgi, who stepped down as the government’s top law officer in June, in a stunning revelation said that if he was still holding his position, he would have admitted that the government lost the case. While talking to The Indian Express, Rohtagi said that he had noticed a clear ‘’dilution” of the government’s stand before the nine-judge Bench and that this should not have been done. This was Rohtagi’s first reaction since the Supreme Court gave its landmark verdict on August 24.
“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,” he added. Rohtagi further added that 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?’” he told The Indian Express.
On August 24, the apex court had said that privacy is a fundamental right under the Indian Constitution. This verdict has thrown open the gates of scholarly and intellectual debates across the country regarding Aadhaar and the legal validity of biometric profiling.
“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. The whole issue should have been decided together. This is a very unsatisfactory way of going about deciding cases,” Rohtagi concluded.