
Privacy Judgment: A Salvo In The Fight Against Discrimination Against The LGBTQ Community in India
Live LawThe hype over the latest decision on the Right to Privacy in India, delivered in Writ Petition No. The following telling observation of the Hon'ble Supreme Court, in its judgment in the case of Suresh Kumar Koushal v. NAZ Foundation, showed one of the points in respect of which their Lordships of the Hon'ble Supreme Court found fault with the judgment of the Delhi High Court: “…the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” In all fairness, Their Lordships of the Supreme Court examined several judicial precedents before arriving at its ultimate conclusions and upholding the constitutionality of the much maligned Section 377. In the Justice A. K. Puttaswamy judgment, His Lordship Dr. Justice D. Y. Chandrachud, writing for himself along with Their Lordships Mr. Justice J. S. Khehar, the Hon'ble Chief Justice of India, Mr. Justice R. K. Agarwal and Mr. Justice S. Abdul Nazeer, underscored the malleability of our Constitution with characteristic eloquence thus: “This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. Besides taking issue with the observations in Suresh Kumar Koushal about the lower numbers of the LGBT population in India, and about the less than 200 persons prosecuted under Section 377 in the last more than 150 years, Their Lordships also reproduced the following observations from that earlier judgment: “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature.” Commenting on the propriety of these observations, Their Lordships in Justice A. K. Puttaswamy have observed as under: “Neither of the above reasons can be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution.
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