Note: Part 2 of Kirankumar 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. Summarily and without tracing it’s 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, this right was found not to be absolute and different judges on the bench stated different reasons and tests for State interference with it. In this blog, I will discuss implications of the judgment on the 377 case and rights related to sexual orientation and gender identity (SOGI), generally.
Before doing that, we need to be clear that there is no clear majority opinion, in the ordinary sense of the word, in this case. It is a nine judge bench and therefore, an opinion endorsed by five or more judges would count as a majority opinion. However, here, there is one opinion endorsed by 4 judges (Chandrachud opinion) and 5 individual opinions, all of which find a fundamental right to privacy but are different in particulars. Such a situation is called a plurality and to find a majority on any one point, 5 or more judges should have the same opinion on that point.
2. IMPLICATIONS FOR THE 377 CASE
a. 377 Matter is Still Undecided
To be sure, the court did not decide the 377 issue. In fact, 5 judges of 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] (Chandrachud opinion)
“It is not necessary to delve into this issue further, other than in the context of privacy as that would be an issue to be debated before the appropriate Bench, the matter having been referred to a larger Bench.” [para 81, Kaul J., upon finding that the fundamental right to privacy extended to LGBT persons regardless of how minuscule they were in numbers.]
b. Sexual Orientation Recognized as a Fundamental Right
5 Judges of the court clearly found that sexual orientation is “undoubtedly” an essential attribute of privacy. If privacy is a fundamental right and sexual orientation is an essential attribute of privacy then the right to sexual orientation is a fundamental right as well. 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 Koushal noted 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. Two Arguments for Personal Intimacies to be Essential Entitlements 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. 2 other opinions in the judgment should be highly persuasive of this point. The first is the 4 judge Chandrachud opinion finding 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. The second is the Justice Nariman opinion which finds that the fundamental right to privacy will protect “fundamental personal choices.” Although he does not explain what that phrase means, his judgment illustrates “personal choices” as including “rights of same sex couples—including the right to marry…” This provides grounds for arguing that Nariman J. too, finds that personal intimacies of all persons, regardless of SOGI, is protected by the fundamental right to privacy.
3. APPLICATIONS OF THE JUDGMENT MAY OPEN UP MARRIAGE AND PARENTHOOD TO LGBT PERSONS
Finally, the 4 judge Chandrachud opinion 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 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 SOGI. This means that this opinion has affirmed that even LGBT persons have a fundamental privacy right to home, procreation, family life etc. This coupled with Justice Nariman’s finding that personal choices protected by privacy include, “rights of same sex couples—including the right to marry…” provides extremely persuasive grounds for arguing that 5 judges have stated that all persons have a right to marry, regardless of SOGI. Additionally, the logic of the 4 judge Chandrachud opinion may also open up avenues for LGBT persons to argue for procreation related rights like surrogacy etc.
 My thanks to Mariyam Kamil, DPhil (law) student at the University of Oxford for hearing out and confirming my various legal conclusions re. SOGI from this decision. Mariyam researches on the constitutional right to privacy in India.
 S.377, Indian Penal Code, 1860.
 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.
 Kaul J. Opinion; para 80.
 For example, paragraph 126 and Conclusion (3)(F) of the Chandrachud opinion.
 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.
 Nariman J.; Para 81.
 Nariman J.; Para 46.
 Additionally, Chamaleshwar J. suggests that “intimate decision” is an aspect of privacy and it includes most personal life choices [Para 36]. He does not elaborate on what personal life choices are and for this reason, I have left it out of the above reasoning. Similarly, Bobde J. states that privacy has “deep affinity” with intimacy, among other things. In its literal sense, the word affinity means closeness, liking, similarity as per the Oxford English Dictionary and therefore its unclear whether Bobde J. has counted intimacy as an aspect of privacy. For this reason, I have left it out of the reasoning. In this blog, I have tried to present the strongest arguments from the judgment for personal intimacies to be counted as a privacy entitlement.
 Nariman J.; Para 46.