August 24th, 2017 is a red-letter day for the citizens of India. After nearly four decades of dancing around, the Supreme Court of India has finally answered the question “Am I entitled to some privacy?” for the 1.3 billion people in India. The verdict asserts that the right to privacy is a fundamental right guaranteed by the Indian Constitution.
The judgment acknowledges that It is an individual’s choice as to who enters their house, how they live and in a relationship of their choice. The privacy of the home must protect the family, marriage, procreation and sexual orientation, which are all important aspects of one’s dignity.
It further adds that if the individual allows someone to enter the house, the other cannot harm the individual or violate his or her rights. This applies to both, the realm of the physical as well as the virtual.
This judgment is significant in many ways. First of all, the SC has endorsed the privacy rights despite all the resistance from the BJP-led NDA government. Secondly, it has recognised that privacy is protected by Article 21 and is further reinstated by the whole chapter on the fundamental rights in our constitution. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Thirdly, it confirms that the guarantee of constitutional rights does not depend upon being favoured by majority or popular opinion. Therefore, the right to privacy cannot be denied, even if there’s a miniscule fraction of the population that is affected by it.
Big thanks to the (young) nine-judge bench, all the lawyers, petitioners, and the many hands and hearts who got us this iconic judgment and restored our faith in the integrity of the judicial system. This judgment highlights the possibility of valuing freedom, democracy and selfhood.
Sexual Orientation is an attribute of privacy
The privacy right protects the rights and identities of the LGBT+ persons and clearly states that the fundamental rights are not linked with the majoritarian opinion. Even if the LGBTI is a minority community, no one can take away their fundamental rights. They have the right to life, the right to privacy, and the right to autonomy and dignity. It further confirms that this right protects the inner sphere of the individual from interference by both- the State as well as the outside community and allows the individuals to make autonomous life choices. This nine-judge bench has killed the core of the Suresh Kaushal judgment( 2013). To add further joy to our queer hearts, it vehemently says that the 2013 judgment was seriously flawed.
So the right to love anybody can be certainly claimed as the “right to privacy”. So is the right to indulge in consensual sex with another adult in the privacy of one’s home or personal sphere!
Sensibility and intelligence have finally prevailed in our country, and there’s hope that IPC 377 will not be upheld any longer. The judgment further states that “we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.”
We are thrilled with this verdict and believe that it is high time someone reminded the State and the government that they are public servants and not dictators. Their job is to protect the rights of all citizens and not put a stamp of morality on their preferences and choices.
This week has been almost unbeatably beautiful – first with the ruling on Triple Talaq and now with the right to privacy recognized as an inherent and fundamental right. Now we can definitively say Acche din aa gaye hai.
In the coming days, we’d publish more articles to best understand the content of privacy rights, and how far it’d be a solution to the many personal and the political complaints, also thereafter what lies ahead.
Below are a few amazing excerpts from the Right to Privacy Judgment. To get a detailed understanding of the implication of rights to privacy on 377, read paragraph 124 to 128 of Right to Privacy judgment.
(Source: para 126 of Right to privacy judgment)
(Source: para 127 of Right to privacy judgment)