By M.J. Aslam
On 24-08-2017, 09 Judges Constitution Bench of the SC of India in the case of Justice K S Puttaswamy v. Union of India unanimously held that right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India and as a part of the freedoms fundamental guaranteed by Part III of the Constitution. It was cleared, however, that the right to privacy is subject to the same restrictions as applicable to Part III of the Constitution. The Court made two significant observations which definitely come in ratio part of the judgment and these observations will have definitely a greater impact on socio-religious psyche and fabric of India. These are as below:
(1) Firstly, “the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected”. So, it means that even if a small population or minority is affected by an act or order or law of the State, it will be unconstitutional if it hits their fundamental rights of religion, equality, life & personal liberty and the other rights under Part III of the Constitution.
We may mention here that in India section 377 of the Penal Code of 1860 criminalises homosexual acts which are categorized therein as “unnatural offences”. The related excerpt of the section reads as under:
“377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine…………..”
In 2009, the Delhi High Court in the case of Naz Foundation v. Govt. of NCT of Delhi decriminalized sex between consenting adults by holding that consensual homosexual acts between adults was a crime and in violation of the Constitution. It observed that section 377 was violative of Articles 14, 15 and 21 of the Constitution of India and as such arbitrary, discriminatory and opposed to the right to life and personal liberty guaranteed to all natural persons and citizens in India. It further said that “ a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders [LGBT] and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under section 377, IPC, 1860”. In simple words, section 377 of the IPC, 1860 was declared unconstitutional by two judges of the Delhi High Court. It means a license for LBGT community’s choice to have adopted their “unnatural sexual relationship”.
But there was a huge reaction from “rights groups” against the Delhi High Court judgment which was challenged in the SC of India. On 11 December 2013, the SC, after hearing the case titled Suresh Kumar Koushal v NAZ Foundation overturned afore-mentioned the Delhi High Court decision by holding that the judiciary was not supposed to intervene in this matter as it was for the Parliament to take call on this issue. In other words, the SC “recriminalized” sexual intercourse “against the order of nature” as declared in section 377 of the IPC, 1860 when it held that section 377 does suffer from the vice of unconstitutionality and the declaration made by the Delhi High Court as above is legally unsustainable.
As many as eight curative petitions were filed against the said SC judgment in Suresh Kumar Koushal case wherein the petitioners especially LGBT and their supporters requested the SC to reconsider and review its said decision. Three judges bench headed by ex-CJI, T S Thakur, remitted the matter for review or fresh hearing before a five judges bench of the SC, where it is being presently argued and all citizens of India are awaiting final disposal of the case by the SC.
But in the meanwhile, a significant development has taken place in the SC of India when its 09 judges constitution bench in the case of Justice K S Puttaswamy ( decided on 24-08-2017), cited above, have in no ambiguous terms expressed their displeasure with its two judges decision of 2013 in Suresh Kumar Koushal v NAZ Foundation. The Constitution Bench said ,at paras 127 & 128 of its judgement, that the rights of the LGBT population cannot be construed to be “so-called rights” [hitting directly at Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi]. It said that the expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based on claims of the LGBT population. Their rights are not “so-called” but are “real rights” founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination. The SC made pointed observation that it “disagrees with the manner in which Suresh Kumar Koushal v NAZ Foundation has dealt with the right of privacy – dignity based claims of LGBT persons on this aspect. The SC held that Suresh Kumar Koushal decision presents a de minimis rationale when it asserts that there have been only 200 prosecutions for violating section 377. The SC said that de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. Since the challenge to section 377 is pending consideration before a larger Bench” , it left the constitutional validity of the section to be decided by its another bench of five judges who are hearing the Curative Review Petitions as stated above. But in view of this 09 judges bench ruling of the SC , it is not difficult to read the lining on the wall that in near future India will join the “developed countries” of America and those Western countries where rights of LGBT and other acts of homosexuality have been constitutionally recognised as valid. It may be mentioned that the first formal advocacy of the rights of homosexuals and transgenders came from Magnus Hirschfeld , a Jewish German physician and sexologist, long back .
New trend is going to be set very soon in criminal jurisprudence of India as far as “unnatural sex-related-acts” which were hitherto declared “crimes” are concerned . This new trend is going to be set by changed judicial mind and perspective in the changed scenario of “developed nations” about citizen’s right of privacy in a democracy which , it is clear now, includes a citizen’s choice as to how he/she should be free to decide about his/her sexual-orientation of life without any interference from the State. This new development in the law of crimes seems certainly going to happen shortly despite vehement opposition of all “political and religious parties” in India against any move to scrape down section 377 of the IPC, 1860 who contend that the peculiar historical, social , cultural and religious background of the citizens of India does not such a change.
(2) Secondly, the SC in Justice K S Puttaswamy v. Union of India made very significant observations that “the majoritarian concept does not apply to Constitutional rights and the Courts are often called up on to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India”. To reiterate, the SC held that “the de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment”. In India, where Majoritarian Government of BJP backed up by right wing Ultra Hindu Organisations is trying to thrust its will and wish on minority especially Muslim Community as far as their fundamental rights under the Constitution are concerned, these views of the Supreme Court in Justice K S Puttaswamy will have wider consequences against such majoritarian executive actions and legislations of the government as likely to trample on fundamental rights even if those affected thereby are a small group or a religious or ethnic minority community. In the light of this Judgement, such action or legislation of the government will be unconstitutional and illegal. So, at least, in the light of this judgment, by way of analogy, we may interpret it to mean, at least theoretically, that the majoritarian ultra Hindu Nationalism / Hindutva concept, its propagation and steady implementation by the Indian State, which is no hidden secret at all but avowed policy of Sangparivar in power, is quite alien to the Constitution of India? For declaring India “formally” a Hindu Rashtra a total reversal of its Constitution is MUST . But that can be done not by amending some provisions of the Constitution which contain the very ideas of what is called “democratic-secularism” and which constitute “basic features” of the Constitution. Such a [Mis-] adventure could be undertaken only by forming New Constituent Assembly that will be assigned with the task of framing New Constitution for proposed Hindu Rashtra . However, such an idea to form new Constituent Assembly representing all States and parties of India for devising New Constitution for New Hindu Rashtra is impossible for apparent reasons. Such an idea would mean striking “death blow” to the very idea of India. However, it is noticeable that during the past few decades Ultra Hindu Nationalists are making desperate attempts by approaching the judiciary, time and time, to find ways for declaring India a Hindu Rashtra. But so far , so good.
It may be noted here that constitutional validity of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 under which Aadhaar linkage of banking accounts and other bio-metric data is acquired and stored by the GOI for transferring benefits under various social welfare schemes and purposes is presently being heard by a different Bench of Five Judges of the SC. The GOI is sure that the said Aadhar Law will clear the test of constitutionality in the Supreme Court as it(GOI) seems to have assured the SC that “iron-walls” will be built around to protect the people’s data . http://indianexpress.com/article/india/aadhaar-law-will-clear-the-test-arun-jaitley-4842331/ To note, the present judgment in Justice K S Puttaswamy has no direct connection with Aadhar Law issue.