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Modi Govt Makes U-Turn on Right to Privacy, IT Minister Calls AG’s Statement ‘Court Banter’

The arguments advanced by the Modi government’s attorneys general over the last three years have consistently maintained that privacy cannot be viewed as a fundamental right.

IT minister Ravi Shankar Prasad. Credit: PTI

IT minister Ravi Shankar Prasad. Credit: PTI

New Delhi: The Modi government’s response to the right to privacy judgment has been puzzling.

In a series of tweets and then at a quickly organised press conference, information technology minister Ravi Shankar Prasad defended the government’s stance on privacy and claimed that it had “consistently been of the view that the right to privacy should be a fundamental right”.

This statement is blatantly false.

If anything, the arguments advanced by the Modi government’s attorneys general over the last three years have consistently maintained that privacy cannot be viewed as a fundamental right.

In 2015, when a three-judge bench headed by Justice J. Chelameswar was hearing a number of petitions challenging the decision to make Aadhaar mandatory for provident fund disbursements, the-then attorney general Mukul Rohatgi had stated that India’s “constitution makers did not intend to make right to privacy a fundamental right.”

“Right to privacy is not a fundamental right under our constitution. It flows from one right to another right. Constitution makers did not intend to make right to privacy a fundamental right. There is no fundamental right to privacy so these petitions under Article 32 should be dismissed,” Rohatgi argued at the time.

In the 2017 hearings on the right to privacy, the current attorney general, K.K. Venugopal’s official submissions on this subject were three-fold.

First, that privacy could not be recognised as a fundamental or general right under Article 21 of the constitution. Two, that privacy was too amorphous and multifaceted to be fundamental.

And three, that privacy was an “elitist concept” that didn’t quite apply to India. “It is not fair and right to talk about right to privacy for such poor people,” Venugopal said.

It is true that throughout the July 2017 hearings, Venugopal admitted that certain aspects of privacy could require an elevated protection of a fundamental right. However, this too was not a consistent or wholehearted attempt at agreeing. The attorney general instead submitted that privacy was at best a “sub-species of liberty and every aspect could not qualify as being fundamental in nature”.

AG talk is just “banter”

When asked by reporters to explain Rohatgi’s statements that Indians had no “right to absolute bodily integrity” in the Aadhaar-PAN card case in May, Prasad replied that this was “court banter”.

“You are quoting one of the exchanges in the recourse. Go to London, go to Washington or come to Delhi. Whenever cases are argued, there is a lot of banter  and a lot of exchanges. But ultimately, core of argument of both sides is noted in judgement..”

Jaitley defence

Prasad’s other defence centred around finance minister Arun Jaitley’s comments on the Aadhaar Bill in March 2016. In the Rajya Sabha, Jaitley stated that privacy is “probably” a fundamental right.

“Is privacy a fundamental right or not? The present Bill pre-supposes and is based on the premise and that it is too late in date to contend that privacy is not a fundamental right. So I do accept that privacy is probably a fundamental right,” Jaitley said.

Prasad too, both in his tweets and during his press conference, focused a great deal on how the Congress brought in Aadhaar without a legal framework. While this is true, it ignores how deeply flawed the Modi government’s passing of the Aadhaar Act was.

Firstly, the Aadhaar Bill was passed through the money bill route that allowed it to ignore a number of proposed amendments; changes that experts say if properly implemented would have been more keeping with the view that privacy is a fundamental right. As The Wire has reported, the ruling government refused to adopt amendments that would allow Aadhaar users to delete their data while also ignoring amendments that would have given greater oversight to overarching national security clauses.

Secondly and finally, if Jaitley did indeed believe in early 2016 that privacy should be a fundamental right, his arguments did not ultimately not translate into how the government embarked upon its legal strategy as shown above.

  • https://babupaedia.blogspot.in Sudhansu Mohanty

    Mr. Prasad, you must be bantering! Of course, press conferences are places of banter! Indeed, there’s a lot of banter with the media, lot of sallies exchanged, and lots of repartee expressed! Let me paraphrase you and banter, “Go to National Media Centre, go to Vigyan Bhavan, or come to the Constitution Club. But ultimately, core of the banter is in implementing the judgement!”

  • Anjan Basu

    Just when you think that you have finally seen the height ( or depth) of stupidity, the govt springs another surprise upon you. Wide-eyed, you look on as a cabinet minister and senior BJP leader plays puerile games with truth, firmly ensconced in the belief that Indian citizens are no better than imbeciles. In recent months, we have seen some virtuoso performances from sundry sorcerers who specialise in turning facts on their head. But watching the minister brazen it out in the press conference today with the straightest of straight faces still gave me the creeps.

    • http://socioproctology.blogspot.co.uk/ windwheel

      Puerile? Officers of the Court made a grown up argument- viz. Indian Law, as interpreted by the Judiciary, did not recognise a right to privacy. The Supreme Court is not bound by stare decisis. It has changed Indian law- which is its prerogative.

      You know very well that only a very small percentage of lawyers, forget about our ill educated and malnourished masses, understands things you and I grew up knowing because we are descended from lawyers and ‘mimasakas’- in your case Navya Nyaya savants to boot.

      Why on earth would a popularly elected Administration tell stupid lies about something only a few people in India understand? What ‘spin’ are you talking about? The law really did not recognise a right to privacy till the recent decision. That’s why Homosexuality was re-criminalised.

      You must know the ‘quid juris/ quid facti’ distinction. It is fundamental to the Kantian project. Only the Bench can change that demarcation. On what basis do you arrogate to yourself the epistemic right to do otherwise?

      Oh! Right. You are a nobody. So nothing you says matters. But, my dear nobody, it ought to matter to you. Why? You still have duties arising out of your own right to privacy. What sort of duties? Duties to yourself. You don’t have to be a worthless coward intimidated by everybody by reason of your Civic or inter-subjective non-being or cowardly delinquency.

      • Anjan Basu

        With all the humility of which I am capable — and that is a lot — I remind you of something I said once already: all this heavy artillery of ponderous theorems and still more ponderous jargon is completely unnecessary in dealing with a poor, ‘ ill educated and malnourished’ Indian ( your words) such as myself. So, why waste your breath, pray?

        • http://socioproctology.blogspot.co.uk/ windwheel

          Humility is a virtue. Boasting of having a lot of a virtue is arrogance.
          Why remind me of something you already said? A humble man would wish that his utterances were forgotten by everyone or, if they were wise or witty sayings, remembered but attributed to some great sage or moral exemplar.
          You tell me you are ill educated. In other words, you achieved a good position in life without putting your parents, or Society at large to a great expense. Well done!
          You also tell me you are malnourished. I am a great big fatty. Once again you score over me.

          It is perfectly possible to believe that a fundamental right exists in an action guiding sense and yet hold the opinion that it does not exist in law. the Bench has clarified this matter. Effectively, they have changed the law by exercising their unique right to interpret the Constitution.

          Suppose the Minister had said ‘The present administration does not believe in the right to privacy.’ Then the question would be ‘why is the Govt. not seeking to amend the Constitution in this respect?’

          Is it likely that politicians and the rich people who support them don’t want a defense in law against the machinery of the Justice system? If they are paragons of virtue, perhaps so. Otherwise, no.

          I suppose, Indians who pay Income tax have an interest in frustrating any attempt to increase the efficiency of the redistributive aspect of fiscal policy. If very little of the money ear marked for the poor actually reaches them, the poor have little incentive to vote for more redistribution.

          Oh! I see! You are right wing, not a left-liberal. Silly me.I should have guessed it from your depiction of yourself as a malnourished and ill educated nobody trembling at my pedantic ire. Swami Vivekananda and Mahatma Gandhi and Narendra Modi and so on have stressed the primacy of service to ‘Daridra Narayan’ and ‘antyodaya’. However they were themselves claiming to have no wealth and thus were the poorest of the poor. Thus, service to the poorest meant serving these windbags.

          One thing puzzles me. You clearly think I am not a ‘leftie or a pseudo liberal’ and that I would wish to bombard targets who meet that description. But it is safer for a howitzer to train its sights on unarmed civilians who lack the capacity of returning fire. Thus claiming to lack the capacity to retaliate is a strategic error. Or so it would seem. A smart person however would make precisely this claim when faced with a stupid enemy because sooner of later the enemy will think to himself ‘this guy is manipulating me. He isn’t located at the position which I am bombarding. Indeed, it is he who benefits from- and is secretly laughing at- my belligerent efforts.

          Damn! I don’t endorse ‘Manuvad’ but it seems there is something to that theory. People with surnames like Basu will run circles around you if are rash enough to engage with them. More humiliatingly yet, they will do so by being oh so humble and harmless!

          • Anjan Basu

            Good Heavens! What wonderland have I landed up in!

          • http://socioproctology.blogspot.co.uk/ windwheel

            Ever since Mandal Commission, High Caste Hindus have been trying to prove, by their every utterance, that their own community deserves not just Extremely Educationally backward status but also extra points for being utterly and irremediably retarded. Nobody bothered to send me the memo because my writings already over-fulfiled the desiderata.

            On a different note- I wonder if I could trouble you for a translation of this poem by the Hungryrealist poet Shakti?

            Chilo onek rajar bari – chok milano, hajar gari
            ebong jole shonali agonon,
            hNasher dol dolay pakha, tobu tomar shonge thaka,
            chomotkar Zuleikha Dobson.
            Ishankone omonojoge – megher tNuti dhoreche roge,
            dumre pore probola shalbon,
            chNad utheche ontoreekhkhe, monosthapon kori bhikhkhe,
            tomar jonno, Zuleikha Dobson.

          • Anjan Basu

            My head reels, ‘and a drowsy numbness pains/ My sense, as though of hemlock I had drunk,/ Or emptied some dull opiate to the drains/ One minute past, and Lethe-wards had sunk….’ I wish Keats hadn’t written these lines in his time — for I might then have had the opportunity of describing my befuddled state in authentic terms. My lines would have been not half as noble, but the anguish/ ecstasy no less genuine.

  • Anjan Basu

    Just when you think that you have finally seen the height ( or depth) of stupidity, the govt springs another surprise upon you. Wide-eyed, you look on as a cabinet minister and senior BJP leader plays puerile games with truth, firmly ensconced in the belief that Indian citizens are no better than imbeciles. In recent months, we have seen some virtuoso performances from sundry sorcerers who specialise in turning facts on their head. But watching the minister brazen it out in the press conference today with the straightest of straight faces still gave me the creeps.

  • Anjan Basu

    Just when you think that you have finally seen the height ( or depth) of stupidity, the govt springs another surprise upon you. Wide-eyed, you look on as a cabinet minister and senior BJP leader plays puerile games with truth, firmly ensconced in the belief that Indian citizens are no better than imbeciles. In recent months, we have seen some virtuoso performances from sundry sorcerers who specialise in turning facts on their head. But watching the minister brazen it out in the press conference today with the straightest of straight faces still gave me the creeps.

  • Anjan Basu

    Just when you think that you have finally seen the height ( or depth) of stupidity, the govt springs another surprise upon you. Wide-eyed, you look on as a cabinet minister and senior BJP leader plays puerile games with truth, firmly ensconced in the belief that Indian citizens are no better than imbeciles. In recent months, we have seen some virtuoso performances from sundry sorcerers who specialise in turning facts on their head. But watching the minister brazen it out in the press conference today with the straightest of straight faces still gave me the creeps.

  • http://socioproctology.blogspot.co.uk/ windwheel

    Sadly the people of India neither know nor care about this. Even more sadly, the Supreme Court can’t be relied upon to be less arbitrary in its rulings or misrulings, that before.

    What has changed? One thing. Universal Entitlements are no longer tenable. This is a blessing in disguise.

    Sadly, the ruling does not actually help Homosexuals as has been claimed. S.C has endorsed a different ‘right to privacy’ than the one which obtained in Lawrence vs Texas.

    Another own goal for the Left but one which affects us all.

    • Anjan Basu

      No, we do care about such things and we want to know all about them. I cannot, of course, arrogate to myself the right to speak about all Indians, nor can I lay claim to greater knowledge than most others I know. But let me assure you that all of those I know — and I know a fair lot of people in different places across various population segments — are keen to keep abreast of things that are likely to impact their lives and their children’s. Some of them never went to an elite school, some happen even to be unlettered, but that does not stop them from wanting to know.

      • http://socioproctology.blogspot.co.uk/ windwheel

        Do you believe this issue has affected voting behaviour?
        I suppose it is quite possible that it might in the future. There may be a religious objection to it or else the belief might take root that it affects sexual potency.
        By law, disbursement of statutory benefits is ultra vires absent proof of entitlement. A future Govt. determined to reduce such disbursements- perhaps at the behest of the IMF- can now take advantage of the S.C ruling to escape the obligation to itself provide such means of proof on a Universal basis and thus reduce its outgoings.

  • ashok759

    Seeing Mukul Rohatgi’s interview with Nidhi Razdan on NDTV, one was struck by his lack of erudition and the coarse quality of his speech. Even his serious arguments would sound like court banter.

  • Amitabha Basu

    Not all the ‘banters’ and ‘tweets’ of the Sangh Parivar can ever change the hard truth that these creatures are liars through and through. (But please don’t infer from this that other politicians are all honest creatures, either).

  • Amitabha Basu

    Ravi Shankar Prasad, Arun Jaitley, Mukul Rohatgi and others of their ilk are living testimonies to the saying “The line of distinction between a lawyer and a liar is often pretty thin”.

    • Anjan Basu

      Yes, but we have a counterpoise– an adequate counterpoise– in men and women like Prashant Bhushan, Sanjay Hegde, Vrinda Grover ……. inside the legal profession, too.

      • Amitabha Basu

        Very true. Except that the liars are usually in political power while the upright ones have to fight tooth and nail to secure justice, if they can.

    • http://socioproctology.blogspot.co.uk/ windwheel

      Why? They are all officers of the Court. They correctly said that Indian Law did not recognise a Right to Privacy on the basis of Stare Decisis. The Supreme Court exercised its power to change how the relevant case law could be interpreted.

      Some journalists are telling lies- e.g. ‘Govt. denied right to privacy’. Nothing of the sort happened. Modi has an MA in Politics. He knows that only the Bench can interpret the Constitution. Jaitley and Swaraj are officers of the Court. They did not believe that the Govt. could have any view at all of the Law- unless they were actually sponsoring a change in the Constitution- other than that which the Bench had established.

      What lie did the people you mention propagate in Court? None. It is you who are lying. Do you really think the Bench wouldn’t punish its own officers for lying to it?

      The truth is, Indian law didn’t have a particular fundamental right till the Bench made this decision.

      But what do you care for the truth?

      • Amitabha Basu

        Since you have decided that you are the repository of truth and I do not care for the truth, I have nothing to say in response to your comment. I find your faith in Modi, Jaitley and their ilk rather amusing, in light of overwhelming evidence about their actual minds and deeds.I can only suggest that you should open your eyes and ears, see and hear different people and sources of information, and then form your own balanced opinion.

        • http://socioproctology.blogspot.co.uk/ windwheel

          Rather amusing? Is that all? What would I need to do to be really amusing? Perhaps I should emulate you. You say that you have noting to say in response to my comment. But then you just go ahead and say something anyway. Why? Is this a Comedy Club?

          Does it occur to you that I might have already opened my eyes and ears and, more importantly, that I have sought to apply theories of Mathematical Politics to explain, but also predict, the trajectory of this bunch of ‘Netas’.

          The answer is not blowing in the wind. Bob Dylan’s Nobel prize speech showed him up. The guy passed his sell by date circa ’65. Going electric was a big mistake.

          I hate to think of the sort of administrations you have endorsed. Fact is a lot of people of my generation suffered under them. Then we left or figured out a jugaad or married up or, in some other way, gave our kids the sort of leg up our parents gave us.

          Tell the truth, Basu Sahib. You did the same. That’s why you are loved by your children and grandchildren.

        • Anjan Basu

          In such situations, I try to remind myself that, in the end, we are all dead. So why try the impossible and waste your breath?