Right to Privacy verdict: By terming sexual orientation an 'essential attribute', SC brings cheer to LGBT rights

When the nine-judge bench of the Supreme Court pronounced its verdict on Thursday, declaring privacy a Fundamental Right, it invited much cheer from many sections of the society, including the LGBT (Lesbian, Gay, Bisexual and Transgender) community in India.

In its landmark judgment, the Supreme Court said that "sexual orientation is an essential attribute of privacy". "Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual," it said.

The 547- page judgement also added that 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.

Justice DY Chandrachud, one of the nine judges, said, "Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone."

Representational image. Getty images

Representational image. Getty images

Article 14 of the Constitution deals with equality before the law which means the State cannot deny any person equality before the law and equal protection from the law based on religion race, caste, sex or place of birth. Article 15 prohibits discrimination on the basis of the above while Article 21 guarantees an individual right to life and personal liberty.

"LGBT rights cannot be dismissed as so-called rights," CNN-News18 quoted the apex court as saying. This decision affects Section 377 of the Indian Penal Code (IPC), which criminalises sex between consenting adults of the same sex. The Supreme Court in 2013 reversed the Delhi High Court ruling and criminalised same sex relationships as "unnatural" and "against the order of nature" in the Suresh Kumar Koushal versus Naz Foundation judgement, known popularly as the "Suresh Koushal judgement".

In the Right to Privacy verdict, the court said, "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 favourably regarded by majoritarian opinion," and added that the Koushal rationale "that prosecution of a few is not an index of violation is flawed, and cannot be accepted", reported The Indian Express.

Anjali Gopalan, founder of Naz Foundation that petitioned the Delhi High Court in 2001 against Section 377, was quoted by Hindustan Times as saying, "I am over the moon."

The report also quoted Gautam Bhan, a professor and one of the original petitioners against Section 377, as saying, "I welcome this judgment. It is a relief to hear sexuality spoken of in the language of rights and dignity."

The Supreme Court had earlier linked Right to Privacy to LGBT rights in a hearing in July, according to The Telegraph, when Justice DY Chandrachud said, "If I cohabitate with my wife, what would be the scope of the right, would it include marriage? Probably yes. Procreation? Probably yes. I may have my own sexual orientation. But the moment we say it is a Fundamental Right, the judgment in (the) Naz Foundation (case) becomes vulnerable. Sexual orientation then becomes part of right to privacy."

The Right to Privacy judgement will affect several cases including Section 377, Aadhaar, beef ban and commercial surrogacy. For the LGBT community, it is a huge win as it will aid their case in the curative writ petition pending before the Supreme Court challenging the validity of Section 377.


Published Date: Aug 24, 2017 06:05 pm | Updated Date: Aug 24, 2017 06:05 pm


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