Now that the much-awaited judgement of Supreme Court judgement on Right to Privacy is upon us, many interesting discussions are happening all around. On a jurisprudential level the judgement will be path breaking and will initiate further discussion on this subject, for its impact is widespread. More than putting an end to the problems involved this decision would initiate fresh grounds for development of law in this area. Some past decisions might have to be revisited based on the outcome here. One such case is the regressive jurisprudence established by the Supreme Court in Suresh Kumar Koushal & Anr. Vs. Naz Foundation and Ors. (2014) 1 SCC 1. Apart from other jurisprudential mistakes, that the judgement has made it has relied upon two judgements in particular to discredit the arguments on right to privacy made by the LGBT persons in the case. While the High Court 160 (2009) DLT 277 found Section 377 to be in violation of the Right to Privacy under Article 21, the Supreme Court simply rejected such arguments relying upon the judgement by the Court in Kharak Singh v. State of UP AIR 1963 SC 1295 and Gobind v. State of MP (1975) 2 SCC 148. The overt reliance by the court in these two judgements is both to delineate the state interference on one’s privacy rights and to show that Section 377 challenged in the case falls under the reasonable restrictions on the fundamental rights guaranteed under the constitution. As far as the correctness of these two judgements are concerned it can be seen that these cases are no more a good law, since they were effectively been disregarded in a line of subsequent cases. Especially in Kharak Singh the ratio was based upon the premise that the fundamental rights were watertight compartments, which cannot be read together and cannot have spill over effects on each other –a pre Maneka Gandhi era with A.K.Gopalan understanding of fundamental rights. However, this understanding has been changed both in Maneka Gandhi and R.C.Cooper judgements of the court. Moreover, a seriatim of subsequent cases has identified this and has been noted by the court even very recently in Mohd Arif v. Supreme Court of India (2014) 9 SCC 737
“25. In Kharak Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] reading of fundamental rights in watertight compartments was reiterated by the majority. However, they went one step further to say that “personal liberty” in Art. 21 takes in and comprises the residue after all the rights granted by Art. 19. Justices Subba Rao and Shah disagreed. They held:
“The fundamental right of life and personal liberty have many attributes and some of them are found in Art. 19. If a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Art. 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Art. 19(1)(d) and Art. 21 are infringed by the State.” (at pages 356-357)
26. The minority judgment of Subba Rao and Shah, JJ. eventually became law in Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India [Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248] , where the 11-Judge Bench finally discarded Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] view and held that various fundamental rights contained in different articles are not mutually exclusive: (SCC p. 289, para 53)
“53. We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression “law” means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.”
27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248] . Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48 : SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J]
In the much-awaited judgement on the right to privacy, if the court finds that the Right to Privacy is a fundamental right recognised under the constitution they must necessarily overrule these two judgements, which has been relied upon in Naz foundation, explicitly to arrive at such a conclusion. This would erode the fundamental premise upon which the challenge to Section 377 was made by the LGBT persons was rejected by the court. Also, while arguments were made before the 5 judge bench in the Right to Privacy case it was strenuously submitted the petitioners that the court must only identify that the Right to Privacy is a fundamental right and is a part of the Constitution and it must not venture into defining the contours of it but to leave it to be decided on case to case basis. In Naz Foundation, the state interference in the matters of personal choice and sexual orientation may have to be revisited in view of the concrete understanding that would emerge through this judgement on privacy rights. Specifically in the context of privacy rights and individual autonomy over sexual orientation would be put to question and there would be a necessity to delineate the degree of state interference in such matters. It would provide a wonderful opportunity for the court to revisit one of the most regressive judgements ever has been delivered by the court. The overarching impact of the judgment on the constitutional status of right to privacy can be keenly felt when we see the wide ranging repercussions, either positive or negative, that it could create in the established jurisprudence. It is the fondest hope that the Supreme Court would not succumb to the temptations of arming the state by failing to recognise such an inalienable right.
