What the #RightToPrivacy Bench has said about Emergency and Section 377

What the #RightToPrivacy Bench has said about Emergency and Section 377

Aditya AK

It has been a historic week for the Supreme Court of India, with netizens raving (and thanking the government for some reason) first over its Triple Talaq judgment, and now over today’s judgment in KS Puttaswamy v. Union of India declaring the right to privacy as a fundamental right.

The nine-judge Constitution Bench also talked about a variety of aspects associated with the right to privacy, including how the declaration of the same would affect other cases decided by the apex court in the past.

The two most significant references are made with respect to the cases of ADM Jabalpur v. SS Shukla and Suresh Kumar Koushal v. Naz Foundation.

The part of the judgment authored by Justice DY Chandrachud and concurred with by Chief Justice JS Khehar and Justices RK Agrawal and Abdul Nazeer describes these two cases as “discordant notes directly bear upon the evolution of the constitutional jurisprudence on the right to privacy”.

Let’s start with how ADM Jabalpur struck a wrong chord with the Bench.

After the proclamation of Emergency in India in 1975, the Supreme Court was faced with the challenge of determining whether the rights under Article 21 of the Constitution stand suspended in the wake of a declaration of emergency under Article 359(1). A majority of the Constitution Bench would infamously hold that it does, with Justice HR Khanna dissenting. The rest, as they say, is history.

However, today, it seems that history has been re-written, with six judges ruling that it should be struck down. The judgment rendered by Chandrachud J (incidentally his father, Justice YV Chandrachud was part of the bench in 1976) states,

“The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence…The human element in the life of the individual is integrally founded on the sanctity of life…No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights…

…Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend.”

Chandrachud J went on to say that though the Court had impliedly struck down ADM Jabalpur previously, an express affirmation of the same was required.

“In IR Coelho v State of Tamil Nadu, this Court took the view that ADM Jabalpur has been impliedly overruled by various subsequent decisions. We now expressly do so.”

Justice Sanjay Kishan Kaul took his criticism of the judgment a step further, stating,

“I fully agree with the view expressly overruling the ADM Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.”

Justice Rohinton Fali Nariman stated that the position in IR Coelho was the correct one, and agreed that ADM Jabalpur should be expressly overruled.

The other “discordant note” was the case of Suresh Koushal, in which the Supreme Court overturned a judgment of the Delhi High Court which struck down Section 377 of the Indian Penal code as unconstitutional.

It is pertinent to note that during the hearings, Justice Chandrachud hinted that the position of the Supreme Court’s decision in Suresh Koushal would stand on shaky ground should privacy be declared a fundamental right.

Fulfilling the prophecy, Justice Chandrachud and the three judges that concurred with him held that the reasoning taken by the Supreme Court in striking down the Delhi High Court judgment was untenable.

“That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy.  The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular…

…Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

Justice Kaul agreed with this stance.

“I am in agreement with the view of Dr. D.Y. Chandrachud, J., who in paragraphs 123 & 124 of his judgment, states that the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected.”

Today’s ruling could have a significant bearing on the outcome of the review pending in the Supreme Court. As Chandrachud J points out,

“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.”

Another issue is, of course, the challenge to the Aadhaar scheme, which formed the basis of Justice Puttaswamy’s petition. Whether today’s 9:0 unanimous decision asserting an inalienable, fundamental right to privacy will have an effect on the Aadhaar matter is something that we will have to wait and watch.

Read the judgment:

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