Former Attorney General Mukul Rohatgi has said he was “surprised” with the government’s reaction on the Supreme Court’s ruling on the right to privacy.

On August 24,a nine judge bench of the Supreme Court ruled that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution.

In an interview with the Indian Express, Rohatgi said, “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 the parliament and it is a very unsatisfactory resolution of the dispute.”

He further said that if were still in the office as attorney general, 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?’’, he said.

Rohatgi, while hearing on petitions in the Aadhaar case in 2015 when he was the attorney general, had cited previous judgments to argue in the apex court that the constitution did not assign right to privacy that status. He had quit before the nine- judge bench was established in July. His successor, K.K. Venugopal, had told the court that privacy could be a “wholly qualified” fundamental right.

Rohatgi told the Indian Express that the ruling can open up “Pandora’s box”. He said, “This is an encroachment on the role of the legislature. Twenty more fundamental rights can be included in this manner. For example, there can be a challenge for the right of getting good medical treatment to be converted into a fundamental right. This is likely to open up a Pandora’s box.”