GOOD NEWS: The Supreme Court judgment is good news for the country’s LGBTQ community which is still living in the shadows with the Indian Penal Code still carrying Section 377 that criminalises sexual activities “against the order of nature”

History was made when a Constitution Bench of the Supreme Court of India comprising nine judges decided one of the most important questions of the day, whether a citizen of India has the fundamental right to privacy or not, in the affirmative. In doing so, the Court, by an unanimous verdict, ruled that the right to privacy is intrinsic to the right to life and personal liberty guaranteed by Article 21, and is covered under Chapter III of the Constitution which is the chapter laying down the fundamental rights

By Chitranshul Sinha

IN A week of two landmark constitutional judgments, the Supreme Court has redeemed itself as a guardian of fundamental rights.

Let there be no doubt in your mind that this exercise undertaken by the Supreme Court is one of the most important ones in modern Indian history. It will redefine the relationship of the State with its citizens, and empower the latter thanks to the wide reaching ramifications and implications of the judgment. But first, a little history.

On July 18, 2017, in the context of pending challenges to the “Aadhaar Card” scheme propounded by the Government of India, a five judge Constitution Bench referred the issue for adjudication to a larger nine judge bench. This was a culmination of a long wait of almost two years when back in August 2015 another bench of the same strength referred the matter to the Chief Justice of India for formation of an appropriate larger bench to consider whether (a) the right to privacy is a fundamental right or not, and (b) if yes, then what is the source and shape of the right since it is not specifically provided for by the Constitution.

It is extremely important to note that the Government of India chose to emphatically oppose the proposition that privacy could be considered a fundamental right, and argued that it did not require a re-look by a larger bench as the issue had been settled by a eight judge bench in MP Sharma vs. Satish Chandra (1954) and a six judge bench in Kharak Singh vs. State of UP (1962). It is also interesting to note that the petitioners themselves had opposed such a reference to a larger bench as they argued that the issue had been decided in favour of the right to privacy being a fundamental right in subsequent judgments of the Supreme Court in multiple cases.

They had argued that the judgments in MP Sharma and Kharak Singh did not need a relook as the same were not good law any more for various reasons. As an advocate for one of the petitioners succinctly put it, this was a low hanging fruit and should have taken as a given. However, the Court deemed it fit that the matter be settled one way or another by a larger bench. It is reiterated that the issue before the Court was not on the merits of Aadhaar scheme but was only on the question of privacy.


THE Court today agreed with the petitioners, and expressly and unanimously overruled the judgments in MP Sharma and Kharak Singh while deciding that privacy is not merely a common law right, but is a fundamental right under Article 21. In doing this, the Court has also made right to privacy a part of the basic structure of the Constitution and thus has protected it from being assailed by the legislature.

The first implication of this judgment, as stated by Justice DY Chandrachud as a ‘discordant note’ is a huge victory for LGBTQ rights. The Supreme Court has effectively overruled the two-judge judgment in Suresh Koushal vs. Naz Foundation which had held section 377 of the Indian Penal Code as Constitutional and had struck a major blow against LGBTQ rights. The two-judge bench had denied the right to privacy under Article 21 because “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”, which has now been held as an unsustainable basis to deny the right. The Court has now decided that the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by the Constitution. The significance of this finding is enormous as the question of Constitutional validity of section 377 is still pending before the Supreme Court.

Another significant outcome is the express overruling of the infamous Emergency era decision of the Supreme Court in ADM Jabalpur vs Shivkant Shukla which had restricted fundamental rights during Emergencies. Though, subsequent judgments of the Court, and a Constitutional amendment, had restored the protection, the judgment had never expressly been overruled.

The Court has also taken note of the ‘feminist critique’ of assertion of patriarchy and abuse of women under the garb of privacy which, it states, is a violation of the core constitutional rights of women based on gender and autonomy. It has emphasised that women have an inviolable interest in privacy which is the ultimate protection against violations by the State. Interestingly, a bench comprising two of the nine judges has recently acted against this very principle by ordering an investigation into the religious conversion and marriage of a 25-year-old woman in Kerala even though it was done of her own volition. However, that is for another discussion.


ONE big takeaway is the Supreme Court’s demolition of the Government’s argument that privacy is an elitist concept and would come in the way of welfare schemes propounded by the State. To quote Justice Chandrachud, “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights”. This is a major indictment, and, I dare say, criticism, of the flaw in the Government’s line of argument and understanding and is a boost for the petitioners in the main Aadhaar challenge.

The Supreme Court has recognised that privacy is an element of human dignity, and both exist within the inalienable values of life, liberty and freedom. Privacy also includes the right to ‘informational privacy’ which can not only be enforced against the State, but also against non-state actors, like Facebook, Google etc. The Court has thus emphasised the need for framing of a strong data protection law which it has left to the Government take care of.

We must also understand that privacy is not an absolute right and is open to restrictions by the State like other fundamental rights. However, such restrictions would have to take place within a regime of law by a procedure which must be fair and reasonable, and subject to constitutional safeguards. The first test for this proposition could be the challenge to the Aadhaar scheme, and it remains to be seen how the Court would apply the principle there.

The Government of India in its zeal to defend the Aadhaar scheme ended up on the wrong side of history. The two main arguments made by the Government that right to privacy was an elitist concept, and that the Constitution must be read as it was originally framed without the right to privacy being incorporated as a fundamental right have been repelled by the Court.

The six judges who wrote separate judgments were unanimous on these issues and rightly stated that individual and fundamental rights are complementary to socio-economic rights of the majority. The Court also reaffirmed the principle that the Constitution of India is a ‘living document’ and must evolve over time to address issues of societal and technological developments and changes.

Now the main Aadhaar challenge has to be decided by the original three judge bench hearing the matters. This judgment was outcome of a battle, the war being the larger challenge to the Aadhaar scheme. Only time will tell how that turns out.

Courtesy: Huffington Post


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