During the hearing on the Right to Privacy matter, after which a landmark judgement was passed, the nine-judge bench of the Supreme Court also discussed the issue of LGBTQ, under Section 377 of the Indian Penal Code (IPC).
The discussion is further published in the 80th paragraph of the order passed.
According to the order, in the challenge laid to Section 377 of the IPC before the Delhi High Court, one of the grounds was that the said provision amounted to an infringement of the Right to Dignity and Privacy.
The Delhi High Court, inter alia, observed that the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21 of the Constitution of India.
The view of the High Court, however, did not find favour with the Supreme Court and it was observed that only a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis for declaring the Section ultra virus of provisions of Articles 14, 15 and 21 of the Constitution.
The matter did not rest at this, as the issue of privacy and dignity discussed by the High Court, was also observed upon.
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The sexual orientation, even within the four walls of the house, thus became an aspect of debate.
In their judgement, the Supreme Court was also in agreement with the view of Dr. Justice D.Y. Chandrachud, who in paragraphs 123 and 124 of his judgement, stated that the right of privacy cannot be denied, even if there is a miniscule fraction of the population, which is affected.
The Court also observed that the majoritarian concept does not apply to Constitutional rights and the Courts are often called upon to take what may be categorised as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India.
One's sexual orientation is undoubtedly an attribute of privacy, says the order.
In 2013, the apex court upheld Section 377 of the IPC, which discriminates against a section of individuals in society on the basis of their sexual orientation, and placed the onus of repealing it on the Parliament. A writ petition, challenging Section 377 on the ground that it violates the privacy of citizens, is still pending.
Meanwhile, the Supreme Court, today, has upheld the Right to Privacy as "a fundamental right."
The Supreme Court overruled the M.P. Sharma (1962) and Kharak Singh (1954) judgement and held that the Right to Privacy is a fundamental right under Article 21 of the Indian Constitution, in an unanimous decision (of the nine-judge bench).
The verdict was given as soon as the nine-judge Constitution bench of the apex court resumed the hearing on the case on Thursday morning.
Following this, a five-judge constitutional bench will decide whether the Aadhar violates the Right to Privacy or not.
The Supreme Court, earlier on August 2, had reserved its judgement over the issue of whether right to privacy is fundamental or not.
On July 26, the Centre told the apex court that there is a fundamental right to privacy, which is a 'wholly qualified right' too.
The Centre made this submission before the nine-judge Constitution bench.
Attorney General, K.K. Venugopal told the apex court that "privacy, as a fundamental right, could have been mentioned in Article 21, but has been omitted. Right to life transcends right to privacy".
In special circumstances, the government can interfere in a matter that comes under a wholly qualified right. An absolute right cannot be reduced or amended.
Earlier on July 20, all the petitioners had completed their argument in the apex court. The petitioners contested that the twelve-digit biometric unique identification card raises privacy threat.
On June 10, the top court had ruled that from July 1 onward, every person eligible to obtain Aadhar card must quote their Aadhaar number or their Aadhaar Enrolment ID number for filing of Income Tax Returns as well as for applications for Permanent Account Number (PAN).
The Income Tax Department has stepped up its efforts to encourage people to link their PAN with Aadhar.
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