Last August, the Supreme Court of India issued a landmark decision on privacy as a fundamental right, opposing the view that privacy has not a Constitutional stand:
the submission that privacy is only a right at common law misses the wood for the trees. The central theme is that privacy is an intrinsic part of life, personal liberty and of the freedoms guaranteed by Part III which entitles it to protection as a core of constitutional doctrine. The protection of privacy by the Constitution liberates it, as it were, from the uncertainties of statutory law which, as we have noted, is subject to the range of legislative annulments open to a majoritarian government. [1. Pag. 222].
According to the lawyers quoted by the New York Times in a recent article about India’s denied gay rights, this decision is meant to have a direct effect on the legislations that criminalize same sex relationships and set forth the “Eunuch Control and Registration” power, since
The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their 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.[2. Page 124]
From the perspective of the non discrimination right this, decision strongly pulls India toward the Western legal doctrines that are well ahead in condemning every act of (xeno-, ethnic-, homo- etc.) phobia.
I do have reservation, though, on the involvement of privacy as a basis to build the cases the Indian lawyers are planning to.
I have a poor – better – no knowledge of the India’s legal system so I’m not entering into the technicalities of this approach, but I can hardly imagine how this case could be related to privacy, when the aim is to bash a law that discriminates people.
Of course personal intercourses are a very personal private matter and should – as they are – protected in terms of privacy and personal data processing.
But the fight against discrimination is a horse of different colour because making legal for a human being to choose his own partner no matter the sex is the exact opposite than invoking a right to privacy: it means being free – at one’s will – to disclose a sexual orientation without being harassed by people (and this is a cultural issue) or punished by the law.
Invoking privacy protection, on the contrary, is a way to weaken the fight against discrimination, because such approach would means something like “as soon I don’t see, you can do whatever you want. But if I catch you, there will be a consequence”.
Thus actually, by invoking privacy in this context one is pushing back the rights already gained.