Interview: Former AG Mukul Rohatgi Says He Never Intended to Contest India’s Right to Privacy
BY ANOO BHUYAN ON 12/09/2017 • 3 COMMENTS
Former attorney general Mukul Rohatgi talks about the recent right to privacy judgment, his objections to it, the concerns surrounding the Aadhaar and more.
Aadhaar cards (left), Former attorney general Mukul Rohatgi. Credit: PTI
As attorney general, Mukul Rohatgi represented the government on a number of important cases – triple talaq, fake encounters in Manipur, criminal defamation and the National Judicial Appointments Commission case.
He also defended the government on the challenges to the Aadhaar case. The Supreme Court had been hearing about 21 challenges to the use of the Aadhaar technology when Rohatgi told the court that privacy was in fact not guaranteed by the Indian constitution. Aadhaar was being challenged on the grounds that it was excluding Indians from accessing government entitlements and also that it infringes on privacy. The matter of privacy then had to be referred to a nine-judge bench who in August ruled that privacy is a fundamental right.
Now in an interview with The Wire, Rohatgi says he never intended for privacy to be contested and that it had not been his strategy to change the course of the case. He says that the way in which privacy was created as a fundamental right in court, was unsatisfactory as it dealt with an issue in abstraction, removed from the facts of the case. He also says the case was delayed by over two years because it was difficult for the court to allocate nine judges to hear it.
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What are your thoughts on the judgment of the Supreme Court that privacy is a fundamental right?
I did not argue privacy finally. But I had brought it all the way there when Aadhaar was challenged. My last three years as attorney general (AG), I had been doing Aadhaar. The issue of privacy then arose and so it was referred to five judges first and then nine. This was because I showed an eight–judge verdict to the court. That’s the stage I left at. I have already publicly expressed my view that it’s a path breaking judgment, though it could be right or wrong. Still its a very learned judgment. No doubt about it.
But I have two objections. One is this procedure of hearing only an abstract issue of privacy without reference to any facts whatsoever. It is a very unsatisfactory way of going about cases. When you have a case in court, you always have a dispute between two or three parties. So you cull out the facts in the dispute and then you apply some law to it. You don’t apply the law in a vacuum. So if the court was anxious to decide this, the court should have decided the Aadhaar petitions first, from which this issue arose.
The second issue is, I personally don’t agree with the fact that the court can find out or recreate or create new rights called fundamental rights. Fundamental rights are a part of the constitution. It is not the function of the court to create new rights. Therefore it should have been left to parliament. It is for the public to approach their representatives and ask them to amend the law to say that dignity today includes this kind of privacy. It should not be under any glare or Uncle Sam or whatever.
What impact might this judgment on privacy, have on the upcoming Aadhaar cases?
These are my views on privacy but the court has ruled otherwise. As far as Aadhaar is concerned, that case is yet to be decided but I have no doubt that the court will uphold the Aadhaar Act. Because even if privacy is a fundamental right, it has to have reasonable restrictions. This Act will and be protected by reasonable restrictions. Because you have to see the contours of Aadhaar – what has it done, what does it seek to achieve.
Firstly, it provides a national identity to the citizens of this country on a uniform basis. Because were divided into states, linguistic areas, languages – one ration card of Tamil Nadu cannot be used in Punjab. And it’s the only foolproof method of an identity which cannot be faked. Biometrics can as yet not be faked. Secondly, it plugs huge amounts of money which is going towards unscrupulous hands from public distribution system, Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), pensions, subsidies, scholarships. I remember telling the Supreme Court that in one year the government of India had saved about Rs 40,000, ensuring the money in some of these schemes did not go to the wrong hands.
That’s a very small amount of money for a whole lot of upheaval.
This is only to start with. We still don’t know what the impact is. There are built in safeguards in the Act itself, so its not as if the Act does not recognize the right of privacy. It recognises that right. And it says that we will have a balance between transparency and detection of crime. Needs of the nation, needs of public interest, will override private interest. The idea is not to leak out the biometrics. There are enough safeguards. Parliament has rightly passed that law which was piloted by the finance minister himself who is a seasoned senior lawyer. So he is aware of this.
Do you have an Aadhaar Card?
Of course.
How many years ago did you get it?
Right in the beginning.
For many people, they got the Aadhaar because they need to access government benefits. Why did you get it?
I took it simply for the fact that it gives me a fool-proof identity. I’m very happy with it. I had no problem giving my biometrics. You give your biometrics to passport office. When you go to Europe you give your biometrics at the immigration desk. You use your credit card. The moment you use it anywhere in the world, we know where you are. So to say that these should also should be a part of privacy and nobody should know, I don’t agree with this. Why should the state not know? Its not that somebody is prying into your bedroom. Tomorrow if we have terrorists going around with fake ID cards? We already had a parliament attack. So if we have these kinds of conditions prevailing in the country and in the world, to say that nobody should do anything about it, I don’t think it is right. So I immediately took my card. And I’m very happy with it.
In the post–Snowden world, what gives you the confidence? The British NHS had their entire system hacked, people couldn’t get lifesaving surgeries. Sony Pictures had their servers hacked, allegedly over a movie they made with controversial political depictions. Closer to home, Centre for Internet and Society in Bangalore says just four government websites were leaking 135 million Aadhaar details.
In every new scheme there will be hiccups and ups and downs. If there are leaks they should be addressed. There are people operating these systems who don’t know the importance or sensitivity of the system. But that by itself doesn’t make the concept wrong. Government will take action. But let me tell you, till when I was in government, these hiccups were pointed out to the government and we checked out the hiccups. They were not really major hiccups from government centers, they were from some other centers, something like that. So it’s not anything that will make me suffer any discomfiture at all.
The apprehensions people have from Aadhaar, their “paranoia” perhaps, comes from two main issues: Is my data safe with the government? Who all will have access to this data? The fact is, there are companies who approach you with products today, and they already have your Aadhaar details in their system. Foreign companies also reportedly have been accessing this data.
I am not aware.
Does these cases make the Aadhaar paranoia justified?
I don’t think it is justified. But if companies have it, it must be investigated. How do they have it? It is not meant to be shared. But I don’t think this paranoia is justified. I mean what’s the great problem – you give your biometrics for passport after all.
The court has heard these arguments, on census data and passport data. The court made the distinction, that this data was localised and not interlinked with other things. The Aadhaar is different and is being seeded with everything, both government and corporate. It is a pan–opticon. It is also all consolidated in one place, making it an easy target for attack.
What is the fear people have from their own government? It’s a government for the people of this country, its not the British ruling over India. Why do you fear your government? Their idea is to make you secure. And now you turn your back on them? When I go to the airport and it takes half an hour at the security line, I’m very happy even though when I was the AG, I had an exemption from checking because. I tell the guy, please check.I tell the guy to please check. Somebody could have shoved something in my bag. So how can you have this kind of paranoia? Are you living in an ivory tower or a country that is beset with all kind of problems?
Definitely the latter.
Please understand one thing. This paranoia is coming from a few people in a country of 150 crore. Are you saying the entire country is bartering away their valuable information? This country may not be literate but they are mature. See how they vote. Why is this paranoia stemming only from a few people? Why is it not any widespread any angst?
There has been more than ninety per cent coverage of the Aadhaar.
More than ninety. About 115 crore Aadhaar cards, I remember have been issued.
But the goalposts of Aadhaar have changed repeatedly. What Aadhaar was initially, which is when large scale enrollment began, is very different from what it has become.
It was found to be helping in many situations. When I enter the supreme court I have a card and the moment I swipe it, my photograph comes up. You have biometrics for employees entering the Supreme Court. Suppose a terrorist enters the court or parliament? What kind of mayhem will happen?
Now shift from security. Talk about its benefit. The point is I don’t want its benefit. I don’t want a single benefit from the government for Aadhaar because I can afford it. I and Mr (Arun) Jaitley were ready to give up our cooking gas subsidy on day one. Because we don’t need it. But the majority of this country is poor. If they are getting benefits which they didn’t get earlier without bribing somebody or being harassed by a bank manager, whats the problem? Now they will get their MNREGA wages on their doorstep from a bank correspondent. We have now 2 or 3 correspondents per village. There are 6 lakh villages in this country. So if everything is going to work that way, the real benefits will come. Why are these people who are challenging Aadhaar intent on destroying the benefits which will come to 20-25 crore people? This is paranoia. You used the right phrase – according to me its only paranoia.
You said the Aadhaar Act has already built in privacy and it was not necessary for the court to define a new fundamental right. So was this process a waste of time? Did we already have enough privacy?
Back to my first objection on procedure. The court should have cared to examine the allegations and facts about Aadhaar which are in the cases which are pending. They were not examined. If they were examined, they would have seen the Aadhaar Act– They would have said, ‘Alright. Privacy is a right whether you call it fundamental or a human right or a very important right.’ The label doesn’t matter. Now a data protection law is coming to parliament. That’s the statement I made as well. 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.
This “abstract” case of privacy came about because you told the court that privacy is not guaranteed in the constitution. The petitioners never went to court demanding a right to privacy. So what is your our own role in this matter?
I’ll tell you how it is. It was argued that privacy is a fundamental right. And if it is a fundamental right, then the manner of Aadhaar and biometrics would be an encroachment on personal liberty. You must understand, I was defending the Aadhaar concept, first as an executive scheme because there was no law. And then as a law, when the Aadhaar Act was passed.
So I told the court, ‘Look there is already a judgment of eight judges which says that privacy as a concept is not in our constitution.’ I did not mean that– that privacy is nothing. I only placed the position of the Supreme Court judgments.
So you were not trying to change the course of the case? You don’t think you added something new?
No. Because, petitioners were trying to say that privacy means something. The fact is, the Supreme Court had said 50 years ago, that this is not so. So I placed it before 3 judges. Those three judges said that if eight judges have said this, then to take a contrary view in our system, would need them to count the number of hats. So it had to go to 9 judges. And that’s when I left. That eight–judge verdict was overruled by this one finally.
But when the nine-judge bench overruled these two, they said that the operative parts of these judgments – MP Sharma and Kharak Singh – had not denied privacy. So why were they being quoted in court to deny privacy?
Well, whatever it is. See what happened is, those two judgments which you mentioned, they came in the 1950s. Whether it was quoted out of context or not, they had said that there is no privacy. After that there were some 15 judgments from the 1970s onwards, which took a contrary view. So I had shown all the judgments to the courts– I said there are these two, and then these 20 strike a discordant note, therefore it must be resolved. The new judgment now says the later ones are a correct exposition of the law and that things have moved on over 50 years. We are not in the 1950s era, where privacy was seen as not a right.
Should lawyers have been citing these two judgments to say there is no privacy then?
See, a lawyer is entitled to quote whatever he wants. Sometimes the other side can say it does not apply, that its not on all fours, or that it’s a mere stray observation. But finally it’s the judge who takes a call. Cant blame a lawyer.
In conclusion, you’re saying you never intended for the abstract matter of privacy to be contested. You’re saying this was not a willful change of government strategy. Even though Vahanavati, the previous AG for example, had taken the line that, “Privacy is a right, and Aadhaar doesn’t infringe it.” And you are seen as the person who said, “Privacy is not a right.” If this was the case, why didn’t the union of India stop this case from escalating this way?
Let us be clear. The government does not decide the nature of legal arguments. Even in a private case, if I’m appearing for you in a property matter, you don’t decide what I’ll argue. You put the facts before me. I’ll put the facts in some compartment of some law and present it that way. So the government’s affidavit was all on the benefits of Aadhaar and that it doesn’t infringe any so called right, your paranoia, whatever. That is the affidavit. The government doesn’t tell me ‘You argue it this way or that way.’ So in the course of my research I came across these two judgements. And all I did was place it before the court. Along with 20 or so judgments which ruled the other way. The order records this as well. In the wisdom of the court, they thought that nine judges should first decide this.
Could the judges have settled it without this escalation? If you were not actually saying that the stand of the union of India is that there is no privacy, and if you were only saying that there are two contrary judgments…
I wont say that. Everyday people react differently to different things. Judges also react differently. There are any number of cases where courts have said A, and after 10 years they say B which is absolutely the opposite of A.
I was in court when your successor, K. K. Venugopal, suddenly told the court that the government was not actually denying the right to privacy. At one point, it became simply impossible for him to continue your line of argument. But if you yourself never intended this, it would now seem inevitable for Venugopal to have done this.
I was not in court when this case was being heard. Venugopal is a very seasoned and astute lawyer and has been at the top for the last 30–40 years. So its not that he just folded. I’ve seen him argue.
But he had the hard, perhaps implausible task, of carrying the burden you set for him?
Sometimes, whether in this case or any case, if we project our case too high, the government kind of brings it down. And the court does not agree with your position if it is too high pitched a position. Its open to a counsel to take whatever stand he likes. And I don’t think its correct to say Venugopal folded.
Immediately after the verdict, you gave interviews saying the government should not have said this in court, that the government itself admitted there is privacy. You feel the government should not have admitted the right to privacy. At the same time you say today that you never intended to contest the right to privacy. Was this “much ado about nothing,” as you said outside court, after the verdict?
Let’s put it this way. Every lawyer has a different way of arguing and a different way of steering the case.
Under your guidance, the government valiantly held up this position, even after it became an abstraction. The government did not correct the record in court, once it had become about privacy.
I did it up to a particular point, which was much before the final hearing. I don’t believe a lawyer of the stature of Mr. Venugopal could be cowed down by a court.
My question is not so much about whether he was cowed down, but about whether he was really saying only the most tenable thing possible to court, given that you never intended it to reach here…
There is no point commenting on somebody else. All lawyers argue individually. You can never have a straight track on any case. Very often when I think I’ve argued one point the best, the judge may react and say my worst point was my best. Even today it happens, after 40 years in the profession. You never know how a judge will react.
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Moving on to the role of the government – soon after the verdict, union law minister Ravi Shankar Prasad tweeted, “Government was of the view that Right to Privacy should be a fundamental right.” Did this feel like your hard work was squandered?
I thought about it. And after I thought about it, it seemed to me, that keeping in mind when the Aadhaar Act was drafted and passed – it had kept in its view the object of the act, the nature of safeguards in the act with regard to the right of privacy and right to sharing – it seemed to me that his comment may be a fair comment. When the law was drafted, maybe they had this notion in mind, that privacy exists. Certainly the Act shows that – that privacy exists.
The question is whether privacy was up to the pedestal of a fundamental right or something below that right– SC has used “human rights” in some cases. So we had to decide to what level we wanted to pitch something. So in that retrospect, it’s a fair comment to say – That when the government did pass the law, they were cognizant of it.
You were given a hard task, to defend privacy. And you did what it takes to argue it. Even then, the government lost on the linking of PAN to Aadhaar and lost on privacy. From the outside it looks like you worked hard, delivered and the government turned on you.
I don’t think so, that’s not fair. I told you the government does not tell you what to argue. Whether its Manipur on fake encounters or this. All the arguments are by us, we only get the facts from the government. So its not as if something is squandered or not squandered.
At the end of the day, the real issue will be when the Aadhaar Act is tested. All this debate is actually premature.
When you test it, you will put the parameters of privacy and you will put reasonable restrictions, and then you will see – Does the act fit. That’s the real test.
Let’s talk about double standards and contradictions – even while the government was opposing privacy in the Aadhaar case, the government was upholding privacy in two other cases. One was on the case of criminal defamation, and the other on companies like WhatsApp having access to users’ private data.
I made a statement in that case that we are bringing in a data protection law and everybody must fall in place.
In these cases, wasn’t the government taking what the Aadhaar dissenters would call a “progressive” position on privacy?
As I said, the abstraction on privacy was my view, it was not the government of India. The government never said there is no privacy.
Should we see this as a double standard on the part of the union of India?
No. The government was cognisant of these things. This is a stand I took because I found a legal way to pitch my case. No its not a double standard, not a contradiction and not intentional.
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Lets talk about the fact that the case took more than 700 days to get its day in court. The conspiracy theory was that this was being done with an eye on politics, because in the meantime the government was linking Aadhaar to everything conceivable. But at the end of the wait, nine men all agreed that privacy is a fundamental right. Was this judicial evasion or something else?
No no not at all. If you ask me, the average time unfortunately for a case to be decided in our Supreme Court and a case as big as that can easily be five to ten years. There are cases pending before nine judge benches over ten years, like Maharashtra Rent Act case. So its not as if there’s an evasion by the Supreme Court. In fact the Supreme Court, according to me, took it out of turn. For a chief justice to keep aside nine judges for a week or two weeks really means that hundreds of cases which would be heard by a three-judge bench would be pushed down. Here the Supreme Court showed alacrity rather than delay.
Except the court does find time to hear cases that are politically important. For example both the triple talaq case and Jayalalithaa’s disproportionate assets case, were listed during the vacations. Of course case listing is discretionary, but what are the discretions here?
Its not political cases. Its not fair to the court to say political cases get heard. Its the magnitude of a case which determines its listing. Can the court say if some issue is raging in the country, they that will not deal with that issue immediately? So if some issue is raging and is a matter of current debate in the society, it is the duty of the court to take It up.
I agree. So what happened on Aadhaar and privacy?
So those kind of cases are picked up. Take defamation. What is political about it?
Criminal defamation was an extremely political case. It involved Rahul Gandhi, Arvind Kejriwal, Subramanian Swamy and Arun Jaitley.
But you must understand it affects a large number of people. Take defamation, pellet guns, demonetisation. These cases affect millions of people. Its not because of politics.
By that logic, Aadhaar and privacy was not picked up because…
Of course it was picked up. Two years of a wait, I call it picking it up. It could have been pending for years. I can tell you there are at least 10 or 20 cases of nine judges which are pending for 10 years. There are some 100 cases which are pending for seven judges, five judges. So its very difficult to pick up.
So you’re saying the delay is because we had to get a 9–judge bench, not because of pendency or politics?
Its not easy to get nine judges. Its difficult. The last nine judges case I did was the entry tax case a year ago.
Its not easy. It is difficult.
Its not easy. It is difficult.
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You have spoken about how issues like privacy, should be handled by parliament and not the courts. But Aadhaar was passed as a money bill. Which means, an issue which affects so many people, did not get a chance to be passed in Rajya Sabha. The linking of PAN card with Aadhaar was ram rodded through the Finance Bill this year, which is again a money bill. This linking lost the case in court, and I was in court when you argued it. Does this approach to legislation justify some of the paranoia about the legitimacy of Aadhaar?
I cannot comment on the legislative process. The legislature is a master of its own procedure. Even the court cannot say anything about its procedure. Whether voice vote, whether there was a debate, it does not make a difference. The master is the house. Secondly, a money bill can be a money bill whether it’s the finance bill or not, as long as it satisfied the criteria of the constitution– Whether money is coming from the consolidated fund of India. This is happening with Aadhaar.
But that does not mean that every part of a money bill concerns finances. Its like flesh and blood. Even a money bill will have financial issues and other issues.
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On to the future– Now that privacy has been dealt with, the debate moves back to Aadhaar. Does the Aadhaar card work as a barrier to prevent people from accessing their services? Does the technology actually plug corruption? Does the data compromise privacy? These are the issues raised by academics, activists and journalists. They are seen as having “Aadhaar paranoia.” They were called “elite” in court. The court has rebutted that.
A manual labourer who’s finger prints have been erased by working hard labour with their hands, or an elderly person who’s prints have become faint, or a young child who lost his Aadhaar card on the way to school, or a trafficked woman who has been flying under the radar – What becomes of these people?
People who’s finger prints have been erased are few and far between.
Even if its few and far between, can the government build an infrastructure that denies any of them their access to entitlements?
That’s okay. I’m not sure. I haven’t read the Act recently. There may be some other alternative for them. Even people who are blind can have Aadhaar.
And we should be confident that at the time of authentication these things – iris and finger print scans – will not fail?
At enrollment, one gives both. During authentication, if one fails you can give the other. Secondly, its not correct to say that its difficult to get an Aadhaar card, or you have to give a bribe or anything. I know from my own experience. 100 crore people are getting Aadhaar cards and you think they got it by giving a bribe? Its impossible, there would have been a civil war in this country. I’ve been dealing with Aadhaar officers since the time it started. I got mine with an enrollment camp. You can say ‘Okay you are a well known person.’ But my staff also got it easily and not because of me. They also went to a camp nearby to where I used to live.
So despite the fact that every one of us in India has stories of how we have wrestled with the system to get it to perform its most basic functions, we should now believe that an elderly woman who may have lost her card can get another one easily?
She can get another one straight away. No question of that. They wont suffer. No, no, not at all. If you’re in a very far flung place it may be a little effort to get it. But if you’re in a major town, not at all.
Isn’t that precisely the problem – the bulk of our country does not live in major towns. It is this very logic that made demonetisation so hard– The government knew there are only two lakh ATMs, and the bulk of our country doesn’t have access to it. This seems to be the same approach. So when criticism for Aadhaar is called an elite concern, who actually is looking out for those who need it?
I personally think demonetisation was very good.
Even though nearly all the so called black money has come back to the system? Even though you told the court that Rs 3 lakh crore wouldn’t come back?
These are all matters of assessment. Now that the money has come back. The tax base will widen. Anyway, I’m not handling this anymore.
Can the Aadhaar infrastructure perpetuate denials of services? Do people have anything to worry about?
On Aadhaar, none at all.
Except that the biometrics of UIDAI’s CEO itself did not work – he had brought the biometric machine to demonstrate it to court, during the PAN–Aadhaar hearings.
I don’t know about that. My biometrics have always worked.
Isn’t that precisely the problem – taking a few good personal experiences, extrapolating that, and denying that anyone could have a bad experience?
No no no. Out of 100 crore people, if it hasn’t worked for 100 people, do you think it makes a difference?
Arvind Datar, arguing for the petitioners, asked in court if the government had any data to prove its claims of success. Here’s some data. According to data from July 2017, in Rajasthan, only 67 % of those who had seeded their ration cards to Aadhaar, were actually able to get their rations, under the National Food Security Act. In a state like Rajasthan, if Aadhaar “hasn’t worked” for 25 % people, that’s about 25 lakh vulnerable families.
I cant comment on this.
Then back to my earlier question, what should give us confidence?
What is the reason to not have confidence? What is taken from you?
If you are not getting your meagre ration, that’s something being taken away from you.
Do you think 100 crore people wont raise their voice if they’re not getting their entitlement.
They can raise their voices, but are they being heard? And those who do raise their voices, are written off as elite or paranoid?
No no I don’t agree. This is only a matter of paranoia and nothing else. What about the US social security card.
There are many qualitative differences between them. The US social security number doesn’t capture biometrics. Last question. If the Aadhaar is the panacea to weeding out duplicate identities and curbing corruption, why isn’t it been linked to the voters ID card?
I don’t know. I’m not working on this issue anymore.
Should it be linked? Based on what you’ve already argued for many years on Aadhaar’s benefits?
I haven’t applied my mind.
Is the idea of ‘One person, one vote,’ much different from ‘one person, one PAN card, one lunch through midday meal, and one MNREGA payment’?
I don’t want to tell you something off the cuff because I haven’t examined it. There must be some reason.
