Privacy Rights – A Rainbow Lining for LGBT community?

24th August, 2017 – a date every Indian should remember because of a very urgent and necessary step taken towards the right direction. After 4 years turmoil about the issue, the Supreme Court finally declared that individual privacy is very much a fundamental right protected by the Indian Constitution.


The ruling, delivered by a rare nine member bench is based on a number of petitions filed by prominent activists that challenge the mandatory requirement of Aadhar cards to avail benefits of public social welfare schemes and many other public services, as per the orders of the Central BJP Government. The petitioners demanded that the compulsory use of Aadhar was an infringement of individual privacy.

Former Karnataka HC judge, KS Puttaswamy filed the PIL in 2012 challenging the Aadhar scheme, saying it violated fundamental rights to privacy and equality. Supreme Court linked all the existing related cases to this one. Petitioners include activists Bezwada Wilson, Aruna Roy and Nikhil Dey.


This landmark judgement also had a touch of rainbow to it and received a fair amount of cheer from the LGBT community. The Supreme Court said right to privacy is valid even in the context of Section 377 – a law that criminalises “unnatural sex” or sexual relation that does not lead to procreation.

The Supreme Court had previously reverted the 2009 Delhi High Court ruling of decriminalising Section 377 and placed the onus on parliament, saying only it can scrap or change laws. Many renowned activists and public figures had asked the court for a rethink. The court had referred it to the Chief Justice and that petition challenging the existence of the Section itself is still pending.


However, here’s what the Supreme Court had to say regarding yesterday’s ruling.

  • Privacy is a fundamental right guaranteed under Article 21 of Indian Constitution.
  • Sexual orientation is an essential component of identity and thus an attribution of privacy
  • Discriminating anyone on the basis of sexual orientation is unconstitutional
  • The rights of lesbian, gay, bisexual and transgender population are not “so-called right” but “real rights founded on sound constitutional doctrine”.

Among the nine judges who passed the verdict, is one who overruled a past judgement by his father, calling it “seriously flawed”.

During the 1975 Emergency, when fundamental rights were suspended by the then Indira Gandhi-led Congress government, the five-judge Supreme Court bench which backed it included Justice YV Chandrachud.

Overturning that ruling, his son Justice DY Chandrachud wrote:

“The judgements rendered by four judges are flawed.  Life and personal liberty are inalienable to human rights. No civilised state can contemplate encroachment on life and personal liberty.”

The government welcomes the Supreme Court’s unanimous judgement on privacy, said union law minister Ravi Shankar Prasad today in the first government response to the ruling, where the government had argued in court in favour of making individual privacy an inalienable fundamental right.


However, the ruling and the Court’s opinion about gender and sexuality made people excited about what might lie ahead. Today, the Indian people earned their right to conform to any gender or sexuality they want to and the Court made sure that it is nobody’s business.

Who knows? Tomorrow we might even see the battle against Section 377 won. The sooner that happens, the better off India will be as a developed country.


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