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HomeOpinionSC's privacy judgement recognises the right to be different and make choices

SC’s privacy judgement recognises the right to be different and make choices

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The Supreme Court of India speaking through its nine judges and six separate concurring judgements has unanimously held that privacy is a fundamental right protected under the Constitution and specifically under Articles 14, 19, 21 and even 25.

The Supreme Court has given the right to privacy the widest meaning and protection, and in the process given sufficient guidelines for the protections of freedoms guaranteed to individuals in this country, who belong to varying hues. The judgement is a harbinger of a new India because the judges have identified the individual as a core of the polity, and it is this individual irrespective of his station or stature in life who deserves protection for his self-determination.

  1. Chandrachud speaking for CJ Kehar, J. Abdul Nazeer, J. R.K. Agarwal and himself has held that the right to privacy is not just the right to be left alone, but it also implicates the autonomy of an individual and the ability to make choices. This goes to the core of human personality and that this is inviolable.

But most importantly, he held that privacy is an intrinsic recognition of heterogeneity against the societal demand for homogeneity. Privacy has been extended beyond spatial privacy i.e. privacy of spaces and has been given its widest interpretation to include the right to be different, to make choices and to have decisional autonomy. Therefore, the traditional critique of using privacy as an interpretative tool has been taken care of by this court.

For instance, the Wolfenden Committee Report in the UK in 1957 had suggested that homosexual behaviour between consenting adults in private was a part of the realm of private morality or immorality, which is not the law’s business and can no longer be criminal. Therefore, privacy was understood in a very limited sense of being a private affair i.e. the sphere of the closet.

This view has been criticised because it reinforces the notion that sexual difference is a matter not to be spoken of in public. Wayne Morgan in his article “Identifying Evil for What it is” aptly articulates the conundrum as – “Homo Sex is private, secret and silenced. Hetero Sex is public, acceptable, and normal.” This problem has been taken care of by the Supreme Court by holding that privacy and dignity are inextricably linked and that the Right to Privacy consists of the right to make personal choices including the choice of sexual orientation, marriage, procreation, choice of food, apparels and appearance as well as informational privacy.

Interestingly, the court has even grounded privacy in Article 14 and held that the state action must satisfy the test of non-arbitrariness while denying a person his right to privacy.

The court’s interpretation of privacy has broken down the dichotomy of conduct and status as well as the public-private divide. Because, the moment privacy is about personal choices and autonomy, it goes to the root of the person’s identity itself, and the traditional notion of privacy operating in the private realm is no longer relevant. This approach of the Supreme Court resonates with the view of J. Sachs of the South African Constitutional Court in his judgment in National Coalition for Gay and Lesbian Equaliity v. Minister of Justice, 1998 where he observes –

“The fact is that both from the point of view of the persons affected, as well as from that of society as a whole, equality and privacy cannot be separated, because they are both violated simultaneously by anti-sodomy laws’ (SACHS J in National Coalition for Gay and Lesbian Equality v Minister of Justice, 1998)”

The court has unequivocally also rejected the rationale applied by the Division Bench of the Supreme Court in Kaushal v. Naz Foundation, 2014 1 SCC 1, and reaffirmed the counter-majoritarian role of courts to maintain the checks and balances envisaged under the Constitution of India. Paragraph 80 of J. Sanjay Kishan Kaul’s concurring opinion that refers to Paragraph 128 in J. Chandrachud’s opinion, where he disagrees with the manner in which Kaushal has dealt with privacy – dignity-based claims of LGBT persons.

The court has stated that the Right to Privacy cannot be denied even if there is a minuscule fraction of the population, which is affected and the majoritarian principle does not apply to constitutional rights.

Zoheb Hossain is an Advocate-on-Record at Supreme Court of India. He represented the Union of India in the Aadhar cases. Views expressed are personal.

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