Case BriefsSupreme Court

Supreme Court: Hearing the plea of certain persons directly affected by the offence enumerated under Section 377 IPC, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to a larger bench and said:

“The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution.”

Senior Advocate Arvind Datar argued before the Court that the 2-judge bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 that upheld the validity of Section 377 has been guided by the perception of the majority which is based on social morality and stands on a platform distinct from constitutional morality. He said:

“Section 377 IPC cannot be construed as a reasonable restriction as that has the potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle of interpretation of statutes that a provision does not become unconstitutional because there can be abuse of the same.”

He, however, made it clear that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults.

Taking all the apsects into consideration, the bench said:

“A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test.”

The bench was, hence, of the opinion that the decision in Naz Foundation case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age. [Navtej Singh Johar v. Union of India, (2018) 1  SCC 791, order dated 08-01-2018]

Case BriefsSupreme Court

Supreme Court: In a landmark judgment that will remain law for years to come, the 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ has unanimously held:

“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

In the 547-pages long judgment, Dr. D.Y. Chandrachud, J writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added,

“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”

On the aspect of Data Protection, he said:

“Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state like protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.”

He also addressed the issue of rights of the LGBT community in Suresh Kumar Koushal v NAZ foundation, (2014) 1 SCC 1, where it was held that the prosecution of a miniscule fraction of the country’s population in 150 years cannot be made sound basis for declaring that section 377 IPC ultra vires the provisions of Articles 14, 15 and 21 of the Constitution. Stating that the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion, he said:

“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.”

All the remaining judges wrote separate but concurring judgments. Chelameswar, J, in his judgement, said:

“All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being.”

He, however, added that every right has limitations and the options canvassed for limiting the right to privacy should include: (a) Article 14 type reasonableness enquiry; (b) limitation as per the express provisions of Article 19; (c) a just, fair and reasonable basis (that is, substantive due process) for limitation per Article 21; and (d) a just, fair and reasonable standard per Article 21 plus the amorphous standard of ‘compelling state interest’, the last one being the highest standard of scrutiny.

Bobde, J, in his judgment, explained the test of privacy and said that privacy may be understood as the antonym of publicity. Giving examples, he wrote:

“taking one or more persons aside to converse at a whisper even in a public place would clearly signal a claim to privacy, just as broadcasting one’s words by a loudspeaker would signal the opposite intent.”

Nariman, J, discussed the law laid down in ADM, Jabalpur v. Sivakant Shukla, (1976) 2 SCC 521 and said that after this judgment it will be clear that the majority judgment in the said case is no longer good law and that Khanna, J.’s dissent is the correct version of the law. He noted that:

“the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered. By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.”

On the importance of declaring privacy as a fundamental right, he said:

“Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes. Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.”

Sapre, J, wrote the right to privacy emanates from the two expressions of the Preamble namely, “liberty of thought, expression, belief, faith and worship” and “Fraternity assuring the dignity of the individual“ and also emanating from Article 19 (1)(a) which gives to every citizen “a freedom of speech and expression” and further emanating from Article 19(1)(d) which gives to every citizen “a right to move freely throughout the territory of India” and lastly, emanating from the expression “personal liberty” under Article 21. He also added:

“the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.”

SK Kaul, J, on ADM Jabalpur judgment, said that it was an aberration in the constitutional jurisprudence of our country and it should be overruled as there is

“the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.”

Stating that declaring right to privacy as a fundamental right is a call of today, he said:

“In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.”

All the judges unanimously overruled the law laid down in  M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P and said that all the decisions after the Kharak Singh case where it has been held that Privacy is fundamental right, lay down the correct position in law. [Justice KS Puttaswamy v. Union of India, 2017 SCC OnLine SC 996, decided on 24.08.2017]