Rohatgi had previously argued against treating privacy as a fundamental right.
After Union Law Minister Ravi Shankar Prasad claimed that the Centre backed privacy as fundamental right, former Attorney General Mukul Rohatgi said he would have admitted that the government lost the case.
“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?,’’ Rohatgi told The Indian Express.
Rohatgi stepped down from the position of AG in June and said he was surprised with the government's reaction. He also said that the govt should not have diluted its stand before the Bench.
“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 told the daily.
A nine-judge Constitution bench headed by Chief Justice JS Khehar delivered verdict on August 24 that said "the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution".
Rohatgi had previously argued against treating privacy as a fundamental right. "The fundamental rights are engrafted in the Constitution so they have to be physically put in a book called the Constitution," Rohatgi argued as the then Attorney General. "The right belongs to the Parliament, to make the law, amend the law, repeal the law. The court has no power to engraft more fundamental rights in the Constitution."
The top-level law officer has widely believed that there are two spheres - judiciary and Parliament - and both cannot overlap each other.
"There is no amendment in the Constitution by a court as you have two different spheres. The sphere of the judiciary and the sphere of the Parliament. Both the spheres cannot overlap," he said.
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