From Aadhaar to the Closet: Impact of Supreme Court's Privacy Judgment on Section 377 Litigation

The judgment makes it clear that in a democracy, the rights of minorities, especially discrete and insular ones, are as sacred as those conferred on citizens to protect their freedoms and liberties.

Every once in a while, we are privileged to witness a legal decision that makes an impression that goes far beyond the confines of the courtroom. The Supreme Court’s constitutional bench decision in the Justice J. S. Puttaswamy case, the reference to a nine-judge bench on the question of whether privacy is a fundamental right, is surely one such moment. The nine judges, between them, have covered an expansive terrain, tracing the development of privacy jurisprudence in the country and laying precedents for new cases, where privacy has now been indisputably recognised as a fundamental right.

The nine judges of the Supreme Court embarked on this enormous exercise (the judgment itself runs into 547 pages, with one judgment authored by Justice J.Y. Chandrachud and three others, and five other separate judgments) when a five-judge bench, deciding the constitutionality of the Aadhaar project, referred this matter to them. One of the central questions that came up there was whether the Aadhaar project violated the right to privacy of Indian citizens.

The then attorney general Mukul Rohatgi created a stir by arguing that privacy was not a fundamental right, citing the Supreme Court decisions in the Kharak Singh and M.P. Sharma cases. Asked to give their opinion on this, the nine judges have gone about making explicit what was earlier understood to be implicit – that privacy is a fundamental right guaranteed by the constitution, protected as an intrinsic part of the right to life and personal liberty under Article 21 of the constitution, and as part of freedoms guaranteed by part III of the constitution.

The Supreme Court’s eight-judge bench decision in the M.P. Sharma case, which was considered to be the authority for the viewpoint that privacy is not recognised as a fundamental right, has now been unequivocally overruled. The parts of the Kharak Singh judgment, which have been cited in the past to imply that privacy is not a fundamental right, have also now expressly been overruled. The court has also explicitly overruled the majority judgment in the notorious A.D.M. Jabalpur decision, delivered during Indira Gandhi’s Emergency regime, that justified serious violations to the right to life. The court seems to have firmly buried the ghosts of the past, explicitly stating that the A.D.M. Jabalpur decision is bad law.

Justice R.F. Nariman identifies three aspects of privacy in the Indian context:

(1) Privacy that involves the person i.e. when there is some invasion by the state of a person’s rights relatable to his physical body, such as the right to move freely

(2) Informational privacy, which does not deal with a person’s body, but deals with a person’s mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him

(3) The privacy of choice, which protects an individual’s autonomy over fundamental personal choices

It is this third aspect that the Supreme Court delves on the most in this judgment, foregrounding the autonomy/dignity strand of privacy over spatial notions of privacy and through the link between privacy and the right to decide one’s sexual orientation and gender identity. The judges have emphasised that privacy is a right that every individual carries with them wherever they are, as the right is linked to autonomy and the manner in which the person concerned perceives their actions.

So, for example, the court holds that taking one or more persons aside to converse at a whisper even in a public place would clearly signal a claim to privacy, just as broadcasting one’s words by a loudspeaker would signal the opposite intent. Equally, this formulation would not reduce privacy to solitude. Reserving the rights to admission at a large gathering place, such as a cinema hall or club, would signal a claim to privacy.

Privacy in public spaces

This formulation becomes especially important from the perspective of the LGBT community, as many members of the community use public spaces for personal intimacy, given how few people have their own homes. The court held that privacy is not surrendered merely because the individual is in a public space and said that privacy is attached to the person since it is an essential facet of the dignity of the individual. By deploying this version of privacy linked to autonomy and dignity, the court takes into account the concerns of all hues of people – including heterosexual couples regularly harassed in public spaces. In a society where the autonomy of individuals is under constant threat, the Supreme Court’s decision comes as a breath of fresh air.

The judgment authored by Justice Chandrachud (and signed by three other judges) quotes extensively from the Kaushal case (in which a two-judge bench of the Supreme Court overturned the Delhi high court’s decision in the Naz Foundation case), citing two egregious instances where the two-judge bench of the Supreme Court had termed the LGBT community a “miniscule minority” based on the number of arrests under 377, as well as referred to the rights of LGBT people as “so called rights”.

Tearing into both these parts of the Kaushal case, Justice Chandrachud’s judgment makes it clear that in a democracy, the rights of minorities, especially discrete and insular ones, are as sacred as those conferred on other citizens to protect their freedoms and liberties.

Calling the reference to the 200 prosecutions in the Kaushal case “misplaced”, the court held that the arrests of a few people, as opposed to a large number of people, is not rendered tolerable. The court pointed out that subjecting LGBT persons to hostile treatment is impermissible because it subjects them to criticism from society, posing grave dangers to the unhindered fulfilment of ones’ sexual orientation. The court held that the prosecution of a few could not be an index of violation.

The court went on to say that sexual orientation is an essential attribute of privacy and that discrimination based on sexual orientation is deeply offensive to the dignity and self worth of the individual. The judges observed that equality demands that sexual orientation of each individual be protected on an even platform. They went even further and held that the right to privacy and “the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Arts 14, 15 and 21”.

In a remarkable twist to Justice K. Mathew’s decision in Govind vs. State of Madhya Pradesh, which, like Kharak Singh, dealt with the power of the police to make domiciliary visits, the Supreme Court in this case has rephrased the right to privacy as encompassing and protecting the personal intimacies of the home, of marriage, motherhood, procreation and child rearing.

The Supreme Court may not have had the authority to overrule the Kaushal decision (the matter is already being heard in a curative petition) but its judgment is bound to have a massive impact on the status of the curative petition in the matter. The judges pointing out logical and legal fallacies in the Kaushal decision is bound to strengthen the case of those asking for a curative to be heard. Moreover, the fact that five of the nine judges have explicitly referred to the case, makes it clear that many of the current crop of judges in the Supreme Court disagree with their predecessors on this issue. The judgment has brought back into focus the pending curative petition and there is bound to be enormous pressure on the incoming chief justice, Justice Dipak Misra, to constitute the curative bench and expedite the matter.

Justice Nariman, in his part of the judgment, talks about three important dissents – Justice Fazl Ali in the A.K. Gopalan case, Justice Subba Rao in the Kharak Singh case and Justice Khanna in the A.D.M. Jabalpur case. He quotes US judge Justice Charles Even Hughes, who said, “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed…..”. One can read the court’s explicit criticism of their own institution in the Kaushal case as a dissent of sorts.

While the court could not change the law in the Kaushal case, given that the matter is still pending in the Supreme Court, it certainly seems to suggest that if it had the chance, it would have declared the decision bad in law. The judges deciding this matter may have been talking about sexual orientation in the specific context of the right to privacy, but by foregrounding the Kaushal case, they have sent out a strong message. The judgment in the Kaushal case is increasingly beginning to look like an anomaly – an outlier in a growing number of precedents including the Naz Foundation case and the NALSA (transgender rights) judgment.

Siddharth Narrain is visiting faculty at the School of Law, Governance and Citizenship at Ambedkar University, Delhi.