Note: Part 2 of the Kirankumar case discussed last month has been postponed to October, 2017 in light of the privacy decision.
1. THE PRIVACY DECISION
On the 24th of August, 2017, a nine judge bench of the Supreme Court of India decided whether there is a fundamental right to privacy. The question arose in the context of a legal challenge to the biometric information collected via the Aadhaar scheme. The Union of India, defending the scheme argued that there is no fundamental right to privacy in India which led the court to place a conclusive finding on the issue.
Summarily and without tracing its constitutional genealogy, the court decided that there exists, in the Indian constitutional scheme, an inalienable, fundamental right to privacy drawing life blood primarily from Article 21 of the Constitution of India, 1950 (“constitution”). However, the court clarified that this did not mean that the State could not interfere with the privacy of individuals.
The court noted that there may be legitimate State interest in the collection of data on individuals for reasons of avoiding cyber attacks, terrorist attacks, “protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.” [Conclusion 3(I)(5)]. However, privacy can be interfered with only upon the fulfilment of the following conditions: 1. There should be a law which defines the scope and conditions of such interference; 2. This law should identify the legitimate State aim sought to be protected; 3. The interference should be reasonable and proportional to the State aim sought to be achieved. Additionally, the proportionality requirement entails a ‘means to an end’ test i.e. there should be a “rational nexus between the objects and the means adopted to achieve them.” [Conclusion (3)(H)]. Though the court recognizes that both State and non- State actors can violate the privacy of an individual, the thrust of the majority decision seems to be to find a fundamental right to privacy only against the State. However, there is confusion regarding this point.
2. IMPLICATIONS FOR THE 377 CASE
a. The 377 Case is Still Undecided
To be sure, the court did not decide the 377 issue. In fact, the court categorically stated that the 377 matter is pending before another bench and so they leave its validity be decided by the appropriate proceeding:
“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.” [para 128]
b. Sexual Orientation Recognized as a Fundamental Right
The court noted first, that there is a fundamental right to privacy and then in several places noted that sexual orientation is an essential attribute of privacy. The Supreme Court in National Legal Services Authority v. Union of India [“NALSA”] had noted that self defined sexual orientation is, “integral to … personality and is one of the most basic aspects of self-determination, dignity and freedom” [NALSA, para 20], and had in Suresh Kumar Koushalnoted that S. 377 does not criminalize any particular sexual orientation. However, neither of the judgments had gone so far as to expressly declare the right to sexual orientation as a fundamental right.
The reader will recall that the Supreme Court has already noted in NALSA that the right to self determined gender identity is a fundamental right. Therefore, the sum total of all these cases is that now there is an expressly declared fundamental right to sexual orientation in addition to gender identity.
c. Personal Intimacies Also an Essential Entitlement under Privacy
The recognition of sexual orientation as a fundamental right should by itself lead the court to find S.377 unconstitutional as the section stands in the way of the fulfilment of a core aspect of sexual orientation—sex, with a person of choice, and in a manner of choice. However, for the avoidance of doubt, the privacy court has clearly stated that “personal intimacies” are an entitlement under the right to privacy [Conclusion P]. As per the Oxford English Dictionary, the word “intimacy” means familiarity, friendship, but also sexual intercourse. If the right to privacy is an inalienable fundamental right and it includes personal intimacies then S.377 which criminalizes the personal intimacies of LGBT persons cannot stand constitutional scrutiny because it will violate the fundamental right to privacy. This conclusion is doubly solidified in light of the court’s restatement of a crucial constitutional law principle: to withstand constitutional scrutiny, an impugned section should survive the scrutiny of all fundamental rights.
3. APPLICATIONS OF THE JUDGMENT MAY OPEN UP MARRIAGE AND PARENTHOOD FOR LGBT PERSONS
Finally, the court has recognized the following list of non- exhaustive entitlements under privacy: decisions about personal intimacies, family life, procreation, home and sexual orientation [Conclusion (3)(F)]. Privacy itself has been housed under primarily under Article 21. Article 21 guarantees life and liberty to all persons, regardless of sexual orientation and gender identity. Accordingly, the aforementioned entitlements also extend to all persons, regardless of sexual orientation and gender identity. This means that the court has affirmed that even LGBT persons have a fundamental privacy right to home, procreation, family life etc. This logic may open up avenues for LGBT persons to argue for the extension of marriage rights, surrogacy rights etc. to them as well.
 This appears more clearly in J. Chelameswar’s concurrent opinion wherein he clarifies that this decision is concerned with the question of whether there exists a fundamental right to privacy against the State. However, Justice Kaul states that the right to privacy is available against both State and non- State actors. Thus, the ensuing confusion.
 All references to 377 in this blog mean the issue of the constitutional validity of S. 377, Indian Penal Code, 1860 which criminalizes “carnal intercourse against the order of nature”, and which is pending in the Indian Supreme Court.
 For example, paragraph 126 and Conclusion (3)(F) of the majority judgment.
 National Legal Services Authority v. Union of India and Others (Writ Petition (Civil) No. 400/2012).
 Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013).
 Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013) para 38.
 “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.” [para 69, NALSA].
 S.377 criminalizes the sexual lives of all those persons, whether or not LGBT, who have non-peno-vaginal sex. However, in keeping with the scope of the website, I have referred only to LGBT persons in the main text.