Right to Privacy Judgment: SC Says Indians have the Fundamental Right to Privacy


The Supreme Court’s big judgment stating that the right to privacy to be a fundamental right has opened the gates of hope for the LGBT and the gay community that was affected by the same court when it criminalized sex between two adults of the same sex and imported it out of the field of Section 377. The top court concluded that privacy includes as its center the protection of personal intimacies and that sexual course is an important point of privacy in today’s judgment. The court said that the privacy and safety of sexual orientation lie at the center of the fundamental rights under Articles 14, 15 and 21 of the Constitution.

“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favorably regarded by majoritarian opinion. The Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted,” the court held. The apex court also held that “discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.

In its previous judgment, the Supreme Court had taken a majoritarian view; the recent judgment held that mainstream acceptance can’t be the premise to ignore rights. The court returned to its former decision in the Suresh Kumar Koushal vs Naz Foundation case to expand upon its decision. The case was elected in Delhi High Court and later transferred to the top court of India, Supreme Court. The Delhi’s High Court had held that Section 377 of the Indian Penal Code (IPC), seeing that it criminalizes united sexual acts of grownups in private, was a breaching of fundamental rights established under Articles 14 (equality before law), 15 (Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty) of the Constitution.

The High Court had cleared up that Section 377 will keep on governing non-consensual penile, non-vaginal sex and penile non-vaginal including minors. The High Court also had said that the Section 377 refused the dignity of an individual and criminalized their main character on the premise of their sexuality, including that it also breached Article 14 by focusing on homosexuals as a class. “The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21…” the High Court had held. This issue was taken to the Supreme Court and Justice Singhvi spoke for the bench and established flaw with the verdict.

“The Division Bench of the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted (as per reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution,” the Court had said. “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy, and dignity, the High Court extensively relied upon the judgments of other jurisdictions. They cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature,” the court said about the High Court.

The nine-judge bench said that both the arguments in the previous judgment could not be taken as the valid constitutional basis for neglecting a claim based on privacy under Article 21 in the latest judgment.


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