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Right to privacy judgment: Supreme Court says sexual orientation must be protected

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New Delhi: The historic SC’s ruling declaring the right to privacy comes under the vicinity of fundamental right has ushered in hope for the gay and LGBT community that was dealt quite a blow by the same court when it criminalised sex between two consenting adults of identical sex.

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With today’s ruling, the SC concluded that privacy includes at its core the preservation of personal intimacies. Another important aspect of the ruling was that sexual orientation is an essential attribute of privacy.

“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion,” the court held, adding that “the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted.”

The SC further went on to add that “discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

“The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State,” adding that “In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21…” the High Court had held.

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In the latest judgment, the nine-judge bench was of the view that both the opinions in the earlier ruling could not be taken as valid constitutional basis for disregarding a claim based on privacy under Article 21.

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