In a decision that is certain to have repercussions here, a nine-Judge bench of the Indian Supreme Court unanimously held that privacy is a constitutionally protected right which not only emerges from the guarantee of life and personal liberty in Article 21 of their Constitution (“No person shall be deprived of his life or personal liberty except according to procedure established by law.”) but also arises in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III of the Indian Constitution (our Chap III).
The judgment in the case “Justice KS Puttaswamy (Retired) vs Union of India” thus overturns several of its own decisions over the past six decades which held that the Indian Constitution does not specifically protect the right to privacy. The gravamen of the decision declares: “Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution… Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within.”
Since decisions of the Indian Supreme Court have been very influential in the Caribbean in general and Guyana in particular, the section of the judgement which addresses the right of privacy in sexual orientation should be noted since this has become a very contested issue of late in Guyana. Most recently, a self-styled “prophet” declared in a march in the mining town of Linden their disapproval for laws which may loosen the right of the LGBT community to engage in same-sex relations.
Tracing the evolution of privacy in various cases and writings, the judgement concludes: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”
Addressing directly the calls in Guyana for a referendum to be held to determine the right of privacy the Indian Supreme Court was very scathing on this route when it came to a fundamental right:
“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. 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.
“[LGBT] 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.”
