During the hearing by the five-Judge Constitution Bench on the issue of reference of the right to privacy issue to a larger bench, the Chief Justice of India, J.S.Khehar asked the Attorney General, K.K.Venugopal, a pointed query, which made everyone laugh.
The discussion during the hearing was about how minority opinion in a judgment comes to be accepted by the majority in a subsequent case. The counsel and the bench drew attention to the Supreme Court’s judgment in the Maneka Gandhi case, which was decided by a seven-Judge bench in 1978. In this case, the bench drew sustenance from a dissenting opinion in A.K.Gopalan case, decided in 1950. The dissenting view was authored by Justice Fazal Ali, who held that the words "procedure established by law ", whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.
At this point, the Attorney General told the bench, that the minority view in that case was articulated during the hearing by his father, M.K.Nambiar, the counsel for A.K.Gopalan, who challenged his detention under the Preventive Detention Act. The majority in that case upheld his detention, on the ground that it was consistent with the procedure established by law, as required under Article 21 of the Constitution.
As Attorney General, Venugopal now defends the indefensible Central Government position in the Aadhaar case that there is no fundamental right to privacy, and that the ratio in M.P.Sharma and the Kharak Singh were incorrectly followed in subsequent cases, Tuesday’s discussion on Maneka Gandhi case proved to be lively.