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John Locke in his book “The Second Treatise of Government” as he had written that that the life, liberty and the estate of an individual was by natural law[1], a private preserve. This advocates to reduce government intervention into the private sphere of an individual. Privacy lets an individual have control over their life, so it was argued to be a fundamental right of a human being because privacy completes the Right to Life of an individual. The Supreme Court in the case of K Puttaswamy v Union of India[2] the right to privacy as a fundamental right. The judgement also observed that the right to privacy included preservation of personal intimacies and sexual orientation. The Puttaswamy judgement has ignited hope among the LGBTQ Community as the right to privacy can let them legally lead their life. This article is going to focus on how the Privacy judgment will influence the laws in relation to the LGBTQ people.

Society has a concept of assigning gender because it feels that it is one of the ways through which society can organize us. It has lived years with the male-female binary because of which our laws are made with such male-female assumptions. Hence, the concept of self-identifying a gender is a threat to the way in which the society wants us to exist and hence we face a lot of resistance even on a slight deviation from such gender binary.

The NALSA vs Union of India was a milestone judgement as it had explained the concept of self-identification in gender. It established that a person can identify himself to be of a gender which is out of the binary of the Male-Female gender. However, it is still observed that this self-identification principle as laid down by the NALSA Judgement is being violated. Danish Sheikh in his article wrote that a transgender must show a proof i.e a medical sex-change operation, before changing his sex in his passport (Shiekh 2017).  The Transgender Bill 2016 has a provision in chapter which gives a lot of autonomy to a district screening committee as it has the duty of “certifying” the gender identity of a person. The Puttaswamy judgement, along with the NALSA judgement, should logically strike such practices because to have a gender is to have a life and a person’s right to privacy gives him absolute protection by preventing anyone to question the validity of a gender let alone give someone a right to “certify” the gender which a person identifies.  

Public or private sphere if an individual is automatically defined by looking at how such individual’s action affects the people who are present in such sphere. If, a person acts in such a way that it affects the terms of a private realm, then such action is said to be affecting a private sphere. Such private realm could be a family, the person himself etc. Subsequently, the public sphere shall be a one where a person’s action affects the whole society.

Section 377 of IPC makes consensual carnal intercourse (an act usually performed in closed walls) between consenting homosexuals, punishable with imprisonment. Although this law doesn’t punish a person for being a homosexual, but it doesn’t let the person live his life with freedom. This section is criticized as it is directly interfering into the private sphere of homosexuals. Puttaswamy judgement saw Right to privacy as an essential part of right to life, because ones’ right to life is ensured only when he is guaranteed a privacy in living his own life. To have a sexual orientation is to lead a type of life, which one wishes to live, hence the Supreme Court in Puttaswamy judgement held that privacy includes preserving one’s personal intimacies and sexual orientation. Homosexuality can live without any sanction only when section 377 is decriminalized as it prohibits them from having sexual intercourse with each other.

The judgement of Suresh Kumar Koushal v Union of India has resurrected section 377 by giving a rationale that less than 200 persons were prosecuted under section 377 in 150 years and hence it is not a valid ground for deeming the said section as discriminatory as per article 14,15 and 21 of the constitution of India. The court in the Puttaswamy judgment observed that the LGBTQ Community inherit the Right to life granted by the constitution and hence they have privacy which must be protected. Hence the argument in Koushal judgement which excludes the right of LGBTQ because of their low conviction rate was considered wrong and flawed.

If S.377 gets decriminalized and law shall start to accept other forms of gender and sexual orientation, then the laws must be changed accordingly. For example, Section 375 of IPC should change because right now it only covers cases where man has committed rape of a woman. Today, all the customary laws relating to marriage recognize marriages only between heterosexual couples as it has provision only for the “man and wife”.

Right to privacy is making the society accept someone else’s way of life by telling them that one has a right to create his own way of living his life. It also expects a level of tolerance, in case we don’t agree with that type of life. If we connect this with gender, then privacy can create a society which doesn’t signify any gender to a person on his birth, as it would respect such person’s right to shape his own life and it will let him decide how he identifies himself. Hence, a society which will preserve someone else’s gender choices will eventually not be concerned with gender at all. This evidently means that this fundamental right has the potential to create a genderless society, where a boy will not be shamed for “throwing like a girl".[3]

The Puttaswamy judgement is a milestone because it has preserved the democracy of this nation. Privacy is going to give power to the people to lead their life in their own way, which happens to be one of the key purpose of democracy. With the Supreme Court reviewing Section 377, it should only be a matter of time that we move an inch forward to a society which forms a gender respecting society.


K Puttaswamy v Union of India WRIT PETITION (CIVIL) NO 494 OF 2012

Naz Foundation v Government of NCT of Delhi WRIT PETITION P(C) No.7455/2001

Suresh Kumar Koushal & Anr vs Naz Foundation & Ors CIVIL APPEAL NO.10972  OF 2013

National Legal Service Authority vs Union of India & Ors WRIT PETITION (CIVIL) NO.400 OF 2012

Shiekh, Danish. 2017. "Queer Rights and The Puttaswamy Judgement." Economic & Political Weekly.

Picture Reference: https://i2.wp.com/thewire.in/wp-content/uploads/2017/08/377-collage-1.jpg?resize=1160%2C524&ssl=1

[1] Natural law is never given by the state, it is automatically acquired by humans.


[3] This is the tittle of an essay written by Iris Young on Gender.


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Written By Surya Kiran Singh

2nd Year Law student at OP Jindal Global University.

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