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Right To Privacy Judgement Is A Salve For The Wounds Of India’s ‘Minuscule Minorities’

It terms "sexual orientation" an essential attribute of "identity" and "privacy".

26/08/2017 11:29 AM IST | Updated 27/08/2017 10:18 AM IST
Abhishek Chinnappa / Reuters

There is no greater feeling of vulnerability, insecurity, and fundamental powerlessness than to be a "miniscule minority" in majoritarian state. In 2013, a bench of India's Supreme Court taught its sexual minorities this bitter lesson by reinstating Section 377, a Victorian law that criminalises certain sexual activities between consenting adults.

It was unclear why the court chose to overrule a progressive and humane judgement and disregard the fundamental principles of India's Constitution. Their rationale for doing so was ambiguous and mostly untenable. The court, the Constitution stood diminished, as did we all.

It terms the rights of India' sexual minorities as those "founded on sound constitutional doctrine." It terms these rights as those that dwell in privacy and dignity and constitute the essence of liberty and freedom.

Five years later, an incredible, forthright and remarkable judgement has arrived, dismissing all such precedents. A nine-judge bench of the Supreme Court ruled remarkably in favour of individual privacy stating that "the right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices." Interpreting privacy at numerous levels, this judgement poses a question mark on the government's coercive data collection efforts, placing individual privacy above state control except in certain circumstances.

The judgement could not have come at a better time. India, the republic, and its founding values have been in grave crisis. At one end is a regressive growing majority determined to stamp out the diversity, freedom and openness which have defined India and on the other side is a shrinking group of voices pushing back to keep what little remains of this country's founding values.

The judgement is significant in numerous ways. It asserts that it is not possible for an individual to enjoy a meaningful life with dignity without the right to privacy. The judgement terms it as "one of those cherished rights, which every civilised society governed by rule of law always recognises in every human being." By doing so, it places the onus on society and the state to recognise such rights in order to maintain and preserve the dignity of an individual.

For India's "minuscule" queer community, it brings hope. The verdict specifically mentions the regressive 2012 Supreme Court judgement terming it "not a sustainable basis to deny the right to privacy." Going further still the judgement states that the certain rights are elevated so that they can be beyond the "disdain of majorities". Thereby, placing individual dignity, liberty and freedom above majority opinion, mainstream ideas or popular beliefs.

It makes individual dignity the fundamental basis of the nation. India is not supreme until its people are.

Perhaps the most remarkable part of the judgement is when it terms "sexual orientation" an essential attribute of "identity" and "privacy". It goes further and terms "discrimination against an individual on the basis of sexual orientation" as deeply offensive to the "dignity and self-worth of the individual." Pushing against the growing conservatism in India by invoking this line of argument the court reminds us that the right to individual privacy and to desire is fundamental in the Constitution. It terms the rights of India' sexual minorities as those "founded on sound constitutional doctrine." It terms these rights as those that dwell in privacy and dignity and constitute the essence of liberty and freedom. In essence, it argues that sexual orientation must be protected and lies at the heart of the fundamental rights guaranteed by India's Constitution under Articles 14, 15 and 21.

The court falls short of reading down Section 377 as it is pending consideration before another bench. Philosophically though, it has been struck down in more definitive way than one could have hoped. It now remains to be seen when the plea is to be heard.

India's current politicians and their supporters disguised as nationalists could learn a thing or two from the judgement when it states that the unity and integrity of any nation cannot survive "unless the dignity of every individual citizen is guaranteed." It makes individual dignity the fundamental basis of the nation. India is not supreme until its people are.

As India's minuscule minorities wait in anticipation, perhaps we can find solace in words from the Bhagavad Gita that the judgement quotes: "That each age and each generation brings with it the challenges and tribulations of the times. But that Supreme spirit of Justice manifests itself in different eras, in different continents and in different social situations, as different values to ensure that there always exists the protection and preservation of certain eternally cherished rights and ideals." Amen!

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