Judicial Interpretation of Article 21 in the Naz Foundation Case: Privacy – A Moral Right or a Creature of an Amoral Constitution?

Judicial Interpretation of Article 21 in the Naz Foundation Case: Privacy – A Moral Right or a Creature of an Amoral Constitution?

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Volume 2 Issue 3 ()

This paper is an appraisal of the interpretation of the law of precedent, international human rights law and morality put forth by the landmark judgment of Naz Foundation in the context of the homosexuals’ right to privacy. First, this paper will summarize the judicial history of the ‘right to privacy’ in India and proceed to argue that the current interpretation of the law as stated by the Supreme Court previously in Kharak Singh’s case is inaccurate. Second, it will examine the validity of certain sources which the Delhi High Court believes reflect India’s obligations under international human rights law. Third, the paper presents a brief overview of the cases from foreign jurisdictions quoted in the Naz Foundation and proceeds to critically examine the relevance of the quotations therein. Finally, the paper attempts to delve into the analysis of ‘public morality’ as distinguished from ‘private/individual morality’, and examine the practical application and consequences of the analysis of these concepts by the High Court. Then, it humbly attempts to further such analysis with the help of certain scholarly opinion evolved in the context of a similar debate in Britain after the publication of the Wolfenden Committee report in 1957.

Cite as: Bhargav K. Joshi & Neha Mary Koshy, Judicial Interpretation of Article 21 in the Naz Foundation Case: Privacy – A Moral Right or a Creature of an Amoral Constitution?, 2 NUJS L. Rev. 541 (2009)

Disclaimer: All articles of Issue 2 (3) of the NUJS Law Review will be released online once the print copy is out