Privacy as a Fundamental Right – First Notes
JUSTICE SINGHVI’S ABOMINABLE JUDGEMENT IN NAZ FOUNDATION HAS BEEN MAULED
Apart from being happy about the upholding of the right to privacy, as an essential part of both liberty and right to life, the nine judge bench has given everyone who supports the notion that the Indian Constitution exists to protect human dignity, and that such human dignity necessarily also implies choices of life which the majority do not find appealing. Including choices/orientations regarding sexuality.
YES. YES. YES.
The mind-numbingly erroneous (and deeply messed up) decision by Justice Singhvi in the NAZ Foundation case has been categorized as one of the two cases in the history of Indian Constitutionalism that “ought to have never been” and hence to be “confined to the archives.” In plain language, that the justices of the Supreme Court do not adopt, it means that NAZ Foundation ought to be confined to the dust bin. Technically, the nine-judge bench could not have overruled the NAZ Foundation decision as it was not squarely before it, and moreover it is being reviewed by another five-judge Constitutional bench. So, the Court left it to that Bench to essentially light the funeral pyre (and I think most of the judges on that case are a part of this bench too).
HOWEVER, the opinion by four of the nine judge bench of Court has destroyed every illogical argument that Justice Singhvi had raised in the NAZ foundation and demolished. Read paragraphs 124 to 128 in Dr. Chandrachud’s opinion, joined by three other judges.
Here are some really heartening words for those of us who believe that our “liberal constitution” was always intended to be a progressive one – that it would not only hew to what the founding fathers thought were to be protected rights, or what the Government deems as fit for Citizens (or some long forgotten saint or prophet) but as we progressed in time, and achieved greater understanding of human nature and the contents of what constitutes and ought to constitute human dignity, our Constitution would serve as a dynamic platform for bringing about social transformation:
“The view in Koushal that the High Court had erroneously relied upon international precedents ‘in its anxiety to protect the so-called rights of LGBT persons‘ is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be ‘so-called rights‘. The expression ‘so-called‘ seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not ‘so-called‘ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.” (Paragraph 127).
One of the stranger explanations put forward by Justice Singhvi in support of his decision was what one would call as the “de minimis rationale“. The argument he made was that in as much as only 200 instances have been shown to the Court it cannot be concluded that Section 377 is being abused. This is what the Privacy Judgement says in para 128:
” The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. ”
And yes, did you notice the observation regarding “pre-publication restraint?”
<Stay tuned for more on this topic! This is HUGE!>