25/08/2017 1:52 PM IST | Updated 25/08/2017 2:11 PM IST

The Govt Can't Get Away From The Bitter Truth: It Contested Privacy As A Fundamental Right

The art of spinning.

Hindustan Times via Getty Images
Finance Minister Arun Jaitley with Union Minister holding Law and Justice and Ministry of Information Technology Ravi Shankar Prasad.

If life serves you lemons make yourself some lemonade.

The government seems to have taken this adage to heart. It's no secret that the current government has mastered the art of spinning. It has a formidable social media machine. It has been most adept at laying all achievements at the feet of the Prime Minister.

When the Supreme Court ruled against instant triple talaq, BJP MP Meenakshi Lekhi told us it was the "political will" of the Modi government that had led to the judgement. Otherwise it could have suffered the fate of Shah Bano as happened with the Congress in 1985.

Now comes privacy and the spinmeisters have to sing a different tune which is requiring some clever twisting.

READ: Indians Don't Care About Privacy, But Thankfully The Law Will Teach Them What It Means

The court has clearly and categorically and very specifically slammed the government's arguments. It has not only held privacy to be a Fundamental Right, the 500-plus page argument has specifically picked apart many of the arguments the government had made in court.

For example, the government's own Attorney General K K Venugopal had told the court that the arguments about privacy were more suited to developed nations. Poor countries like India did not have that luxury. "It is not fair and right to talk about right to privacy for such poor people," Venugopal said. At that time Justice Chandrachud had pushed back asking why privacy should be an "elitist concept".

In response, the court has an entire section in its judgement, Section O that is headlined "Not an elitist construct".

The Attorney General had said privacy was only a common law right that had evolved through judicial pronouncments. In response the judgment has an entire section, Section P that is headlined "Not just a common law right".

At that time Mukul Rohatgi had clearly said that people could not refuse to get a unique identity number or give their iris scans.

"Even if you want to be forgotten, the state is not willing to forget you," he said.

To try and re-write history instead is silly and counterproductive. It's one thing to make some kind of lemonade when the court has handed it a basket of lemons. It's another to pretend that was their intent all along.

But the judges wrote "Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable." It understands that the Court has to "impart constitutional meaning to individual liberty in an interconnected world" but it does not change that core understanding of privacy.

It is amusing to see the government now tie itself into knots trying to be on the right side of this judgement.

Ravi Shankar Prasad, the law minister has passed off the government's own Attorney-General's remarks in court as "courtroom banter". He tweeted that the government has always been of the view that #RightToPrivacy is fundamental right.

Prasad points to courtroom discussions all over the world to make his point. Unfortunately for Prasad, the record speaks otherwise. Attorney General Mukul Rohatgi clearly said India's "constitution makers did not intend to make right to privacy a fundamental right." The current Attorney General KK Venugopal said "Right to privacy is not a fundamental right in our constitution."

This sounds remarkably consistent. What next? A tweet suggesting the Attorney General was in reality playing devil's advocate in the highest court of the land?

It is true Arun Jaitley did say privacy was "probably" a fundamental right but that matters little if the Attorney General argues otherwise. By that logic, the BJP has also all along been supportive of reading down Section 377. After all the very same Arun Jaitley had also said that the Supreme Court recriminalization of homosexual sex was a "conservative" view that would have been relevant 50 years ago and "probably at some stage (the judges) may have to reconsider." But that was clearly Jaitley's opinion, not the government's stand.

Now, in a pinch, Jaitley's opinion on privacy is being used by his colleagues as a cover against a judgment that has left it red-faced.

Some are going even further. Amit Malviya, the head of BJP's IT Cell tweeted that "When history of right to privacy will be written, PM Modi and his govt will figure right on top for restoring it as a fundamental right." He probably meant when the history of right to privacy is re-written and this was his first stab at doing exactly that.

Malviya has hastily deleted his tweet but unfortunately Malviya, the head of the IT cell seemed not to have read page 529 of the judgement. There the judges say "Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration." The snapshot of that tweet is preserved for posterity.

The government's defenders have quickly resorted to whataboutery. Malviya tweeted that P Chidambaram is pontificating about privacy but "someone should remind him he was under cloud for bugging Pranab Mukherjee's office." He also maintained that the UPA government introduced Aadhar without a "legal framework" and that was what the NDA tried to provide. He tweeted "Lack of proper legal framework for Aadhar by UPA put questions on right to privacy. NDA gave it a law which protected these rights." Amit Shah has also tried his level best to turn this into a story about the failings of the Congress.

He wrote in his blog-- "It is strange that those who snatched away the Right to Life & Right to Liberty of millions of Indians by imposing emergency are standing today as guardians of our fundamental rights based on misinterpretation of the judgement. It is equally strange that those who brought Section 66A & championed censoring on the Internet are speaking of liberties & right."

He should not have mentioned 66A. The Congress is not the party in power. No matter what their sins were, the fact remains when Section 66A went to court, the BJP defended it in court conveniently forgetting that it had once compared it to draconian measures during the Emergency.

Now, in a pinch, Jaitley's opinion on privacy is being used by his colleagues as a cover against a judgment that has left it red-faced.

As media activist Nikhil Pahwa pointed out neither the UPA government, nor the previous NDA government "contested privacy as a fundamental right". This government did and it can twist and turn but not get away from that inconvenient truth. The case went to a 9-judge bench precisely because the government argued privacy was not a fundamental right.

As Rohatgi had argued then, "The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right."

Now at best it can console itself by saying that judges did agree that privacy-- while a fundamental right-- was not an absolute one. BJP4India has tweeted out that party line as well.

Every political party will cherry pick a ruling to find the bits that show it in a good light. There's nothing surprising about that. But the BJP would have done well to merely say they have heard what the court has to say and will do their best to deliver benefits to the poor without stepping on their privacy.

To try and re-write history instead is silly and counterproductive. It's one thing to make some kind of lemonade when the court has handed it a basket of lemons. It's another to pretend that was their intent all along.

If it goes overboard in rewriting history, #CourtroomBanter will start trending as the new hashtag.

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