Privacy a Fundamental Right: Step towards repealing Section 377?

privacy a fundamental right

Well, it has been a historic week for the Supreme Court and especially the court room 1. For those of you who don’t know, Court room 1 belongs to the Chief Justice of India. With his Lordship retiring this Monday, judgments on a lot of major issues were expected this week. The two most important ones being- the Instant Triple Talaq and the Right to Privacy. Being a law student, I have always been taught that our higher judiciary has always risen to the occasion when it was needed the most. So Triple Talaq got declared unconstitutional and today the declaration was made that privacy is indeed a fundamental right guaranteed by the Indian Constitution.

Now you would think what is the big deal about it and all. Well, it may not mean a lot to the generation that has given out every last detail about itself to tech giants like Facebook, Twitter, Whatsapp, Snapchat, Tumblr, Pintrest, Amazon, Flipkart…and I could go on and on. But let me not deviate from the point here. Right to privacy being declared a fundamental right is a monumental decision for a very small, nevertheless, extremely important part of the Indian population. The LGBTQ community that comprises of almost 2% of our population are treated a second class citizens in our own country thanks to Section 377 of the Indian Penal Code. Section 377 criminalises homosexuality and pries inside the bedroom of individuals which technically no State should be allowed to do.

privacy a fundamental right

The Delhi High Court had almost a decade ago struck down this Section but the Supreme Court had reversed this decision upon appeal. This year a review petition regarding the same was admitted in the Supreme Court and the decision regarding the same still remains pending. But with privacy now being declared a fundamental right, the previous decision of the Supreme Court stands on shaky ground.

What is more is that in today’s judgment many judges have referred to the issue of Section 377 and observed that if privacy is now a fundamental right, the virtues of Section 377 seem untenable now. The court said right to privacy is valid even in the context of Section 377. Sexual orientation, the court said, is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”.

privacy a fundamental right
Elaborating on the concept of privacy, Justice DY Chandrachud, who was part of the nine-judge bench that pronounced the verdict, said in his judgment: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation… Privacy also connotes a right to be left alone.”

Though there is no definite opinion on it since the matter is pending before another Constitutional bench of the Supreme Court, it seems to be hinting that there is more than just a glimmer of hope for the proponents of repealing Section 377.

Let’s keep our fingers crossed!

-Mrinaal Datt

Read more about me here.



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