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OPINION | Right to Privacy, Gender and Sexuality

The verdict will have a direct impact on the pending curative petitions around the criminalisation of homosexuality and the constitutionality of section 377.

Siddharth Narain |

Updated:January 9, 2018, 6:26 PM IST
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OPINION | Right to Privacy, Gender and Sexuality
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The Supreme Court in a unanimous verdict has held that privacy is a fundamental right. The nine-judge Constitution Bench was set up after a five-judge bench hearing the constitutionality of Aadhaar referred the matter to them, specifically on the question of whether privacy is a fundamental right. This came after the then Attorney General, Mukul Rohatgi, arguing the case contended that privacy cannot be considered a fundamental right given existing precedents.

While this judgment will directly impact the ongoing matter in the Aadhaar case, this case will have a direct impact on the pending curative petitions around the criminalisation of homosexuality and the constitutionality of section 377 of the Indian Penal Code. Justice DY Chandrachud, writing for four judges of the court, including the Chief Justice, has referred to the Naz Foundation case and the Supreme Court’s ruling in the Kaushal judgment extensively.

The judges have conceptualised privacy as being central to citizens’ ability to have control over information shared about them, the right to decisional autonomy, the right to be let alone by the state, and the right to choose their own sexual partners, as well as their gender identity and sexual orientation.

In a rebuke to the SC’s decision in Kaushal, this larger bench of the court has ruled that the right to privacy includes the right to family, marriage, procreation and sexual orientation. The court has held that 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.

The judges though have made it clear that the ruling does not deal with the matter of decriminalising homosexuality directly – since it was a matter that would be heard by a different set of judges. However, this ruling has already had a massive impact on those calling for a repeal of section 377. This decision, by reaffirming the right to privacy, has strengthened one of the main grounds of challenge to section 377 – that it impacts the right to privacy, and violates the right to life and liberty guaranteed under Article 21 of the Constitution.

This has come as a major shot in the arm for LGBTQ activists fighting the matter and has put enormous pressure on the Supreme Court to constitute the five-judge bench meant to hear the curative matter. As Chief Justice Khehar is due to finish his term soon, it appears that the ball will soon be in the court of next-in-line, Justice Dipak Misra.

(Siddharth Narain is visiting faculty, School of Law, Governance and Citizenship, Ambedkar University Delhi. Views expressed are personal)
| Edited by: Aditya Nair
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