In a historic judgment, the Supreme Court on August 24 declared privacy a fundamental right. The nine-judge bench gave a unanimous verdict that the right to privacy is to be held as an inalienable fundamental right that protects individuals from arbitrary state interference and prevents the state from being totalitarian. The judgment takes note of how the state’s argument against privacy and the arm-twisting ways of getting personal data can lead to an Orwellian society.
The ruling, in a revolutionary move, has broadened the definition and scope of privacy beyond the physical confines of a room by stating that, “Privacy attaches to the person and not to the place where it is associated”.
Quoting John Stuart Mill, the judgment defines privacy as intrinsic and hence inalienable. “In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”
The judgment observes that “Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity.” The judgment – in the way it defines privacy and dignity of an individual – has far reaching implications on the rights of LGBTQI individuals as it believes privacy to include “the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation”.
In 2009, the Delhi high court had struck down Section 377 of the IPC, which criminalises ‘unnatural’ sexual acts, and held that:
“…The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21…”
In 2013, however, the Supreme Court in Suresh Kumar Kaushal vs Naz Foundation overturned the Delhi high court ruling on Section 377 – which discriminates against individuals on the basis of their sexual orientation – and placed the onus of repealing it on the parliament. A curative petition, challenging Section 377 on grounds including that it violates the privacy and dignity of citizens, is still pending before a constitutional bench.
The present judgment calls the Kaushal judgment flawed and unsustainable, as it was discriminatory towards LGBTQI persons by calling them “a minuscule fraction of the country’s population” and making that the basis for denying the right to privacy.
Also read: Right to Privacy Judgment Makes Section 377 Very Hard to Defend, Says Judge Who Read It Down
The purpose of elevating certain rights to the stature of fundamental rights, the judgment read, is to insulate them from the disdain from the majoritarian glare, whether legislative or societal. The reason why such discrimination is impermissible by law is because of the negative effect that they have on the exercise of the fundamental right.
Often, ‘minuscule’minority groups such as LGBTQI community, as the community had been referred to in the Kaushal judgment, face violence and discrimination for the simple reason that their sexual orientation and preference does not accord with the ‘mainstream’ notions. The judgment clearly states that discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity of the individual.
“The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution,” the judgment stated.
Justice D.Y. Chandrachud stated that the right to privacy cannot be denied, even if there is a minuscule fraction of the population, which is affected. “One’s sexual orientation is undoubtedly an attribute of privacy.”
The judgment further goes on to define dignity and how privacy of one’s body entitles an individual to the integrity of the physical aspects of their personhood.
“The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation, which are all important aspects of dignity.”
Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. Very explicitly, the judgment makes autonomy and personhood of paramount importance and views an individual as a constantly evolving being; just like the constitution.
Ajita Banerjie is a researcher on gender and sexuality rights based in Delhi