Supreme Court of India Finds a Constitutional Right to Privacy

On August 24, in Puttaswamy v. Union of India (WRIT PETITION (CIVIL) NO 494 OF 2012), an exceptional nine-judge panel of the Supreme Court of India (which has 25 judges who generally sit in two-judge panels) made an order declaring:  “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution [of India].”  In addition to the four-page “Order of the Court”, the nine judges wrote six separate opinions totaling 543 pages!  (The full text of the opinion can be found at: http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf)

A challenge to a national identity card scheme gave rise to the finding of a constitutional right to privacy.  Although the Court’s focus was informational privacy and data protection, five of nine judges commented on the potential application of the right to privacy to Section 377 of the Indian Penal Code, which prohibits “carnal intercourse against the order of nature” (penile penetration of a mouth or anus, but not a vagina), and stigmatizes more LGBT people than any similar criminal law in the world.  (India has the second largest population in the world.  The largest country by population, China, does not treat the conduct in question as criminal.)

For the full story, access the September 2017 issue of LGBT Law Notes.