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SC may refer challenge to Aadhaar to constitutional bench

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New Delhi The supreme Court on Wednesday indicated it might refer to a larger bench a bunch of petitions seeking the scrapping of the Aadhaar scheme since it violated the privacy of individuals as the biometric data on it was vulnerable to exposure.
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“We are inclined to refer it to the larger constitutional bench,” an apex court bench of Justice J. Chelameswar, Justice S.A. Bobde and Justice C. Nagappan observed as Attorney General Mukul Rohatgi said the challenge to Aadhaar was primarily on grounds of violation of privacy and there were divergent views of the apex court on it.

“Don’t you think if you have divergence of views on right to privacy, should it not be referred to the five-judge bench,” Justice Chelameswar asked senior counsel Shyam Divan, appearing for the main petitioner and former Karnataka High Court judge Justice K.S. Puttaswamy (retd).

Attorney General Mukul Rohatgi said an eight-judge bench and later a six-judge bench in two separate cases held that privacy was not a fundamental right, but in nearly 25 judgments subsequently by smaller benches privacy came to be recognised and cemented as part of the fundamental rights under Article 21.

Rohatgi said even the framers of the Constitution did not think of privacy as a fundamental right.

Urging the bench to refer the matter to the five-judge Constitution bench in the light of divergence of views emerging from different judgments, the Attorney General requested the apex court to see the interplay of the right of those seeking scrapping of the Aadhaar scheme with 700 million people whose subsidies and social welfare schemes benfits were dependent on the “foolproof Aadhaar scheme”.

He said that some petitioners were demanding scrapping of some provisions of the Citizenship Act as they insisted on biometric tests.

Referring to other petitions before the court, challenging the Aadhaar Scheme, the Attorney General said it would impact the issuance of driving licences, passports, the National Population Register and other things that matter to the citizens even otherwise.

He said the scheme was necessary as the country was battling the problem of illegal migrants.

Rohatgi’s plea was supported by senior counsel K.K. Venugopal, who appeared for the Centre for Civil Societies, a group of intellectuals and thinkers.

Appearing for Justice Puttaswamy (retd), senior counsel Shyam Divan told the court that with the passage of time there was growth and evolution of law, ideas and attitudes.

“Privacy is core to the civilisation. It is a pillar of society,” he contended.

Trying to drive home the point of judicial discipline in the growth of law, Justice Chelameswar said, “Individually, we are not against the growth and evolution of law. But it has to be in accordance with judicial discipline.” Thereby, he pointed out that it were eight-judge and later six-judge benches that held that privacy was not a fundamental right.

Divan countered the Attorney General by saying, “If the union is not contesting the position that Indians have a right to privacy under the fundamental rights of the Constitution, where is the occasion to refer the challenge to the Aadhaar scheme to a five-judge bench.”

Justice Puttaswamy moved the court in 2012 and contended that the entire Aadhaar scheme was unconstitutional as the biometric data collected under it was an incursion and transgression of individual privacy.

IANS

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India Gets A Win, Supreme Court Decriminalizes Homosexuality

In December 2013, a Supreme Court bench said that it was for the legislature to look into desirability of deleting section 377 of IPC.

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Homosexuality, India
SC decriminalises homosexuality, victory for gay rights. Pixabay

 In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.

The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.

Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.

Homosexuality, India
LGBTIQ people have a right to live unshackled from the shadow.
Pixabay

“It is the constitutional and not social morality which will prevail,” said the court.

The verdict sparked celebrations in the LGBTIQ community across India even as the judgment was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets.

Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.

Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.

“An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice,” said the Chief Justice.

“Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices,” he added.

Homosexuality, India
In separate but unanimous verdicts, a five-judge Constitution Bench struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional. Pixabay

 

In a concurring judgement, Justice Nariman said homosexuality is “not a mental disorder or disease”.

He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.

Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.

“They cannot be pushed into obscurity by an oppressive colonial legislation… Sexual minorities in India have lived in fear, hiding as second class citizens,” said Justice Chandrachud, adding “the state has no business to intrude on such matters”.

Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality.

“LGBTIQ people have a right to live unshackled from the shadow,” she said.

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The Supreme Court verdict, which overruled its own earlier judgment, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.

The Delhi High Court bench, headed by then Chief Justice A.P. Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law — finding it unconstitutional and a hurdle in the fight against HIV/AIDS.

In December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case, had set aside the high court’s judgment and said that it was for the legislature to look into desirability of deleting section 377 of IPC.

The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community — dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur — which was then marked to the Constitution Bench by a Division Bench.

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The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court.

Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them “mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship”. (IANS)