It was the US Supreme Court’s assertion in 1965 that privacy was a fundamental right under the US Constitution that led to its landmark judgement eight years later upholding abortion rights in the famous Roe vs Wade case.
Five decades later, India could find itself following the same path. By invoking the fundamental right to privacy, which the Indian Supreme Court categorically stated last year was implicit in the right to life guaranteed under the Constitution, India could end up decriminalising homosexuality.
The gates for this were opened on Monday, when a bench headed by Chief Justice of India Dipak Misra admitted a petition challenging the colonial-era Section 377 of the Indian Penal Code that provides for a maximum punishment of life imprisonment for what it describes as “unnatural sex”. It referred the matter to a Constitution bench.
The argument that the criminalisation of homosexual sex is a violation of privacy was already cited in July 2009, when the Delhi High Court bench led by Justice AP Shah read down Section 377. It said that the provisions contravened the right to equality guaranteed by the Constitution. The court also located sexual orientation within the ambit of right to life, invoking the privacy argument. Sexual orientation was perhaps an individual’s most private facet, it said, and the state had no business interfering in this choice.
However, the Supreme Court in 2013 ruled that Section 377 was not arbitrary. It only penalised a particular act, it added. Those affected by the law were minuscule in number, the court said, so this did not warrant the provision being read down. But the court left it to the Parliament to decide on deleting the provision from the statues.
Much has changed since 2013. The right to privacy judgement in August 2017, which referred explicitly to Section 377, has given a sense of urgency to the matter.
America and privacy
It is instructive to see how the Americans went from being deeply conservative about abortion rights to making abortion a fundamental right, something that has now been accepted by large sections of the American population.
For much of its history, the largely Christian country was strongly opposed to use of birth control and abortions . In the later 19th and early 20th century, this religious conservatism was transformed into legislative action by various states that either put extraordinary restrictions on abortions or outlawed them completely.
Things began to change as the 20th century progressed. The fight for voting rights for women, which was guaranteed through the Nineteenth Amendment in 1920, was the result of the emergence of a strong feminist movement in the US. By the 1940s, the movement expanded its focus to sexual rights, which involved both the right to use contraception and to terminate pregnancies.
Though most US states allowed birth control by the 1950s, Massachusetts and Connecticut persisted. There were several challenges against these laws, commonly known as Comstock laws, but none of these petitions managed to persuade the Supreme Court to intervene.
In 1953, however, Earl Warren became the Chief Justice of the United States, heralding an era of liberal judicial pronouncements that widely expanded the rights of citizens. Warren was opposed to the so-called originalists’ reading of the Constitution, which harped on the text of the law and tried to limit the reading of the Constitution to a literal sense. In this legal view, the interpretation of the Constitution by the judiciary should be limited to what the framers meant. The Constitution could be changed only through the process of Amendment by the US Congress as prescribed in Article 5.
In 1961, Estelle Griswold, a civil rights activist, was arrested after she opened clinics to advise women on birth control under the banner of the Planned Parenthood League of Connecticut. Griswold took the matter to the Supreme Court. By 1965, Warren was at the peak of his career, with the entire court now being called the “Warren Court” for its expansive judgements.
In Griswold vs Connecticut, the Supreme Court held that the Bill of Rights, which lists the first 10 amendments to the American Constitution that provide citizens certain inviolable rights, has “penumbras, formed by emanations from those guarantees that help give them life and substance.”
Writing the opinion of the majority, Justice William Douglas said:
“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system.”
Though earlier cases had referred to privacy as a right, it was while upholding the right to use contraceptives that the United States Supreme Court clearly established privacy as a fundamental right in the American Constitution.
Griswold vs Connecticut sort of opened the floodgates in the United States, culminating in the historic judgement in Roe vs Wade in 1973 lifting many restrictions on abortion.
US abortion rights
The case related to a 21-year-old named Norma L. McCorvey, who in 1971 wanted to abort her pregnancy. However, the State of Texas had a law that allowed abortions only when the life of the woman was at risk. McCorvey, who used the alias Jane Roe, decided to challenge that law.
The Texas District Court ruled in her favour, and struck the Texas law down by citing Griswold vs Connecticut and the right to privacy. Texas then took the matter to the Supreme Court. While most expected Chief Justice Warren E Burger, a known conservative, to overturn the Texas court decision, he surprisingly joined the majority in upholding a woman’s right to have an abortion.
Writing for the majority, Justice Harry Blackmun said: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
With Roe vs Wade, the concept of unenumerated rights in the American Constitution was solidified.
India, privacy and homosexuality
In India, the right to privacy was established on August 24, 2017, when a nine-judge bench of the Supreme Court of India unanimously declared in KS Puttuswamy and another vs Union of India that it was a fundamental right that flowed from the right to life guaranteed under Article 21.
Many parallels could be drawn between the fight for abortion rights in the United States and the battle for LGBT rights in India. Both these issues are very controversial, with primary opposition for such rights coming from religious figures. Both are defined as acts against God and are looked down upon by conservative sections as immoral actions. In fact, most of the petitioners who challenged the 2009 Delhi High Court order were religious organisations cutting across faiths.
However, given the Supreme Court of India’s decision on Monday to reconsider the validity of Section 377, there is hope that last year’s privacy verdict could turn out to be India’s Griswold vs Connecticut. Both these judgements place emphasis on individual autonomy as a basis for a dignified life. In fact, the Supreme Court of India, in the August, 2017 judgement, made it absolutely clear that upholding Section 377 was a mistake.
“The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution,” the court held.
On Monday, the Supreme Court, while justifying its decision to reconsider Section 377, said, “The determination of order of nature is not a constant phenomenon. Societal morality changes from age to age.” This too echoes what the American court said in 2015 when it legalised same-sex marriage:
“Indeed, in interpreting the Equal Protection Clause, the Court has recognised that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”