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Gautam Bhan on right to privacy and its links to Section 377

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Gautam Bhan
Gautam BhanAug 24, 2017 | 14:32

Gautam Bhan on right to privacy and its links to Section 377

One, it's important to remember that privacy was only one of the arguments - and for many, myself included, not nearly the most important - made by the petitioners in the Naz case. A narrow reading on privacy would not give me much joy if that is how it has come in today's judgment, which held that it is a fundamental right.

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But the text of the judgment is not narrow - it speaks categorically of 14, 15, and 21. The "and" is key, the list is key because equality, dignity and non-discrimination are needed as core arguments for rights alongside privacy. This is not a reading of Kaushal that says "as long as it's in private, fine." This is a reading of privacy that has the possibility to hold an expansive sense of the word and its relation to human life.

Two, it is easy to think of privacy as a room, a house, a space and distinguish it from the "public". This is not an untrue reading but it is also not all that privacy is.

Shyam Divan, appearing in Kaushal, had argued that privacy was integral to our bodies and our selves, and that we possessed it in the middle of public space. He used the example of particular forms of dressing in public space, for example, or the number of people who knew about someone's sexual orientation, as another, to argue about spaces/fields of privacy as opposed to just a strict public/private divide.

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It is easy to think of privacy as a room, a house, a space and distinguish it from the 'public'. This is not an untrue reading but it is also not all that privacy is.

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With technology, that argument has another flavour today: privacy is not just about where we are but that our data, our fingerprints, our biology, our expression, our lives have the possibility of being violated inside and outside, no matter where we are.

We have to hold, I think, both the narrowness and dangers of appealing to some forms of "privacy" but also think about its other lives that we want to hold onto, need to hold onto.

Three, privacy is essential to our lives beyond our sexual orientation. My first thought was about having beef in one's home. It was about lynching. It was about Aadhaar. It was about surveillance. It was about what reasonable restrictions would follow. It was about medical trials. It was about workplace discrimination. It was about how marriage seems to have survived as a protected space even in this kind of a judgment. It was about the judgment from two weeks ago that refused to criminalise marital rape yet again. It was about WhatsApp messages whose content, maybe, just became safer.

It continues to be about many things. I'm happy about what the judgment said about sexuality, but I'm happy about a whole damn lot else as well.

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Four, god it felt good to read the word fundamental, rights and sexuality in one sentence again.

An excerpt from today's judgment that concerns LGBT rights:

"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.

Last updated: January 08, 2018 | 14:13
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