“If we just hold privacy is a fundamental right, Naz judgment may become vulnerable”, Dr. D.Y. Chandrachud, J while hearing the issue of ‘right to privacy’.
On 18.07.2017, the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ referred the issue involving violation of right to privacy due to Aadhaar-PAN linkage to a 9-judge Constitution bench as the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., have earlier held that Right to Privacy is not a fundamental right.
Chandrachud, J was a part of this 9-judge bench when he said that holding that ‘right to privacy’ is a fundamental might right will mean that the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where it was held that Section 377 IPC does not violate a person’s right to privacy, will no more be a good law.
This one remark by Chandrachud, J on the first day of hearing is a silver lining for the LGBT community. If ‘right to privacy’ is declared to be a fundamental right, the decision will be binding on the bench hearing the curative petition in the Naz Foundation case.