How Mukul Rohatgi Set the Cat Among Pigeons on Privacy, and Now Says He Didn’t Intend To

“I did not mean that, that privacy is nothing. I only placed the position of the Supreme Court judgements.”

New Delhi: On July 22, 2015, Mukul Rohatgi stood up in the Supreme Court with an interruption. It was 10:30am and he was before Justice J. Chelameswar. Shyam Divan, counsel for the petitioners against the Aadhaar technology, had come prepared to continue his arguments from the previous day.

Instead, the court records that Rohatgi, the previous attorney general (AG), interrupted with objections and, from 10:30 am to 12:15 pm, surprised the country with his proposition. He told the court that the right to privacy, which had all this while been taken for granted in India, was in fact not guaranteed under the Indian constitution.

Rohatgi’s single statement stopped 21 other cases which, since 2012, were challenging the linking of Aadhaar to government schemes and its potential infringements on privacy. His statement then changed the course of the case completely; the single issue of whether Indians have a right to privacy would need to be referred to a nine-judge bench of the Supreme Court. This is not something that happens easily in India. And herein lies the magic of how the Aadhaar case evolved into the privacy case, and is now going back to being heard as the Aadhaar case.

Seven hundred and forty four days after his astonishing statement, the matter was finally settled. On August 24, 2017, a nine-judge bench of the Supreme Court unanimously ruled that privacy is a fundamental right in India.

In an interview with The Wire, Rohatgi called the decision pathbreaking, one that is a, “very learned judgement. No doubt about it”. But he also said that he did not actually intend for privacy to be contested as a right: “I did not mean that, that privacy is nothing. I only placed the position of the Supreme Court judgements.”

“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,” he said. He is referring to two judgements that became the pivot that turned the Aadhaar case into the privacy case – M.P. Sharma and Kharak Singh. These were judgements of eight- and six-judge benches in 1954 and 1963. Several subsequent judgements had upheld privacy following these two, but they were by smaller benches. However, the petitioners argued these two had been pegged on a judgement in 1950, A.K. Gopalan vs State of Madras. This was overruled in 1970 by Rustom Cavasjee Cooper vs Union of India.

None of this withstanding, Rohatgi convinced the court that there was “judicial disagreement”. Even lawyers who argued for the petitioners admit that Rohatgi had thrown the proverbial cat among the pigeons and it was all pretty clever.

Talking to The Wire, Rohatgi says he disagrees with the approach of the nine-judge bench to hear the case as “an abstract issue of privacy without reference to any facts whatsoever. It is a very unsatisfactory way of going about cases.” But it was Rohatgi’s strategy that ensured that this was not an option for the petitioners. On this he says, “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.”

Was it an intentional strategy to change the course of the Aadhaar case? “No”.

But if the then attorney general did not intend for the issue of privacy to ever be contested, how did India get here at all?

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For the record, the government also says it never contested privacy

The official record is not as ambiguous about Rohatgi’s role in August’s pathbreaking judgement. Justice Jasti Chelameswar, in his section of the judgement, said, “These questions arose because Union of India and some of the respondents took a stand that, in view of two larger bench judgments of this Court, no fundamental right of privacy is guaranteed under the Constitution.” In the majority judgment, Justice D.Y. Chandrachud wrote that the AG had submitted, “there is no general or fundamental right to privacy under the Constitution.” Justice S.A. Bobde wrote on the link between Aadhaar and privacy, “To the Petitioners’ argument therein that Aadhaar would violate the right to privacy, the Union of India, through its AG, raised the objection that Indians could claim no constitutional right of privacy.”

And it didn’t help that political contortions began immediately after the verdict. For all of Rohatgi’s best efforts – taking what seemed like an implausible proposition all the way to a nine-judge bench – the government turned around and said, “Govt was of the view that #RightToPrivacy should be a fundamental right.” This was a tweet by Union law minister Ravi Shankar Prasad on August 24. Amit Shah tweeted a link saying, “Sharing my blog on the Honorable Supreme Court’s judgement on Right to Privacy.” And by the end of the day, Prasad tweeted his congratulations to Nandan Nilekani, who had begun the Aadhaar project during the previous Congress government’s rule: “Congratulations to @NandanNilekani on becoming non-executive chairman & director of @Infosys. Keep the flag flying. Best wishes.”

Many replied to Prasad with pictures of Times of India’s front-page from earlier this year, which screamed: “Citizens don’t have absolute right over their bodies: Government.” This was what Rohatgi told the court in May.

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Read the full interview: Interview: Former AG Mukul Rohatgi Says He Never Intended to Contest India’s Right to Privacy

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Much ado about nothing?

As the government began to blitz its views in favour of privacy, nothing was making sense. In the same week, the government had also taken credit for the Supreme Court’s decision to ban instant triple talaq, and this seemed like a move in that vein.

Standing outside Court Number 1 on that day, Rohatgi himself explained it away as “much ado about nothing.” He was flocked by a small group of lawyers and journalists. He waved his hands and boomed, “Much ado about nothing. Government itself told the court that it is a fundamental right. I had said it is not. Anyway, every fundamental right will be subject to restrictions and the real test will come on Aadhaar.” To some litigants who were trying to catch his attention he said, “Tasali rakhiye (Be patient).”

To the question of whether he felt his hard work was squandered by the government who turned their backs on him, “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.”

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Privacy’s many legal U-turns

After Rohatgi’s plot twist in 2015, it took two years for the next one. That twist came on July 26, 2017. On that Wednesday, Rohatgi’s successor K.K. Venugopal faced the formidable row of nine judges. Privacy was one of the first big cases for the new AG. Although Rohatgi had brought the matter to the nine-judge bench, he never got the chance to argue it himself.

The bench became particularly talkative after lunch, especially former Chief Justice of India (CJI) J.S. Kehar. The AG began to tell the court that privacy is a spectrum and perhaps only some types could be elevated to be fundamental rights. The CJI interrupted him, “The other side has always been saying there’s different types of privacy.”

As the session went on, Venugopal’s answers began getting circular and he wasn’t keeping pace with the questions from across the bench.

AG: “Privacy has sub species. This needs to be decided case by case. It cannot have an absolute right.”

CJI: “Yes. All fundamental rights have restrictions. It doesn’t mean you don’t have that right at all.”

The CJI reminded Venugopal of what he was arguing in the first place: “Your submission has to be that there is no fundamental right to privacy. Because the petitioners are arguing there is.”

The AG replied: “If you ask if there is a right to privacy, I may say yes.”

The government’s position had begun to unravel.

A few minutes later, the CJI cut in again and said, “If you concede there is a right to privacy which can be regulated by law, we will close this case right now.” He continued, this time more encouragingly: “You are a responsible government officer. If you are convinced of this position, that privacy as a right exists, your position gives you the authority to say it.”

Venugopal teetered. He began to defer and talk once again about Aadhaar, which the court reminded him many times was not the matter before the court. Finally the CJI simply asked the AG, “Tell us what you are saying – that there is a fundamental right to privacy but it is a wholly qualified right? Okay. We appreciate.”

A month later, with 547 pages of a verdict, the nine-judge bench said much the same. And then the government repeated it: that privacy is in fact a fundamental right, and like all rights, it will be qualified.

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All this time, but for what?

In Rohatgi’s retrospection, he said, “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.”

In the case of privacy, the Union of India went from a tradition of saying there was a right to privacy, to Rohatgi saying there wasn’t, to the next AG Venugopal suddenly saying in court that there was a right to privacy, to the Supreme Court finally unanimously upholding the fundamental right to privacy.

The late Goolam Vahanvati, Rohatgi’s predecessor, had taken the line that privacy is a right but Aadhaar doesn’t violate it. Rohatgi told the court that privacy is not a settled concept and thus the status actually is that privacy is not a right. As for Vengopal, although it looked like he had to carry Rohatgi’s cross, he himself had maintained the same line in court even before Rohatgi, as Venugopal had been representing Center for Civil Society, a think tank who had joined the Aadhaar case as an intervenor in 2013.

This wasn’t the only contradiction in this story of privacy. Even while the government was arguing against privacy stemming from Aadhaar, they were taking the opposite position in two other cases. In a 2016 case on defamation, the government supported criminal defamation, reasoning that the truth of one’s reputation was a facet of privacy and must be protected. In the ongoing case on WhatsApp having access to users’ private data, the government argued that under Article 21, a citizen’s private information must be protected. These were progressive positions the government was taking on the “abstract” issue of privacy, while simultaneously opposing it in the Aadhaar case.

On August 24, the bench of nine judges re-assembled. The CJI briefly read out the order upholding privacy. The judges swiftly rose, seven of them disappeared with their chairs until only the CJI and Chandrachud were left. After the gravity of the nine-judge bench on privacy, in walked Swami Om Ji, who had come to appear in person. He was challenging the appointment of the next CJI, Dipak Mishra. Om Ji is best known for socialising wherever the media gathers, such as the Delhi gangrape protests in 2012. Most recently, his red silk kurta, kohl-lined eyes, long dyed hair and bead necklaces found him a place on the reality TV show Bigg Boss. The CJI humoured him for the rest of the afternoon, as Om Ji had the courtroom bursting into repeated laughter. He finally threw out Om Ji’s petiion with a fine of Rs 10 lakh for wasting the time of the court.

But for over two years, the petitioners had been seeking the time of the court. When Rohatgi was telling the court to refer the Aadhaar case to a nine-judge bench to decide on privacy, the petitioners told the court, “It is too late in the day for the Union of India to argue that the constitution of India does not recognise privacy.” That notwithstanding, the court referred the matter all the same. It finally took the privacy matter 744 days to get its verdict. By the time the Aadhaar case gets heard in November, it would have been 27 months.

As much as the Aadhaar and privacy cases are important for law, they are also important for politics. In this period since privacy was put on the waiting list, other more political cases have been listed during the court’s long vacations (such as instant triple talaq and J. Jayalalithaa’s disproportionate assets case). Some have called the mysterious ways of cases being listed and not listed a situation of ‘judicial evasion’.

“There’s no question of delay,” said Rohatgi on this. “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.” He says there are at least 20 cases which need a bench of nine judges and have been pending for perhaps ten years. The reason the courts quickly picked up cases like defamation, pellet guns and demonetisation is because “These cases affect millions of people. Its not because of politics.”

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And now back to Aadhaar

As the government managed to scatter the Aadhaar case over two years, it kicked off a series of actions both outside and inside court.

Outside court, academics were conducting ground surveys on if Aadhaar was working, where it was breaching data and where it was excluding people. Activists were documenting how the poorest were being denied government services. Journalists were reporting the government linking scheme after scheme to the Aadhaar juggernaut. At one point, the Delhi high court even appointed a lawyer to get out of court and go meet with people who were being denied their rights on account of Aadhaar.

In February, Prime Minister Narendra Modi told the Lok Sabha that the government had discovered four crore fake ration cards using Aadhaar. Using the RTI Act, activists found that the government was unable to provide data to back up the prime minister’s claim. That figure was itself later revised and nearly halved to 2.33 crore fake ration cards. Field researchers have noted that in Rajasthan, for example, since Aadhaar was made compulsory for buying ration, over 25% ration card holders, or 25 lakh families, have not been able to draw their supplies. During the seeding, over ten lakh pensioners were removed from the government’s lists, written off for dead. Many of them were later found to be alive but their pensions had been stopped.

The government recently said that in order for households to get subsidies on LPG, beneficiaries must present their Aadhaar number. Rohatgi says, “I and Mr (Arun) Jaitley were ready to give up our cooking gas subsidy on day one. Because we don’t need it.” He says that the majority of this country is poor and will get benefits on LPG due to Aadhaar. “Why are these people who are challenging Aadhaar intent on destroying the benefits which will come to 20-25 crore people? This is paranoia.”

On the very issue of LPG, academics have written that the government contradicted its own data. In 2015, India’s chief economic advisor (CEA) wrote in the New York Times that cash transfers had saved India nearly $2 billion. However, cabinet secretariat minutes from November 2015 say only Rs 91 crore was saved due to Aadhaar. The CEA later clarified that he was talking about potential savings, not actual savings.

Even inside court, the Aadhaar failed. During the hearings on the PAN-Aadhaar case, UIDAI CEO Ajay Pandey tried to demonstrate how biometric identification worked. His own fingerprints failed recognition and Pandey proceeded to do an iris scan instead.

Also inside court, lawyers had already been defending 21 petitions since 2012, which were contesting various aspects of Aadhaar. One of the petitions, filed by Congress parliamentarian Jairam Ramesh, challenged the constitutionality of the Aadhaar Act, which was passed by parliament as a money bill and thus without discussion in Rajya Sabha.

But Rohatgi says that concerns about Aadhaar being a barrier to people accessing their entitlements – whether its mid-day meals for children, treatment for tuberculosis patients or scholarships for disabled students – are unfounded.

He says he got an Aadhaar card early on through an enrollment camp in his neighbourhood, “I took it simply for the fact that it gives me a fool-proof identity. I’m very happy with it.” He questions the “Aadhaar-paranoia” of activists and academics, saying there was no reason to distrust one’s own government and its intentions. “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.” He says that since 99% of adults now have Aadhaar cards; had it been a corrupt set up, “there would have been a civil war in this country.”

With the focus on privacy, the issue of Aadhaar has been eclipsed. The focus now shifts to this technology being marketed as magic. The case challenging the linking of Aadhaar to schemes as well as its infringement on privacy comes up in the Supreme Court this November.

For some like Rohatgi, their conviction is unfaltering. “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.”

For others, this social experiment in the second most populous country in the world fills them with concern. Will the Aadhaar be as pathbreaking as the privacy judgement it spun off? Will it make life better for millions of Indians who struggle to access even existing infrastructures in the country? And will there be any accountability if it is misused?