‘Right To Privacy’ In Naz Foundation: A Counter-Heteronormative Critique
Volume 2 Issue 3 (2009)
The link between sex and privacy is not self-evident. The protection of the ‘right to privacy’ is accorded to only those sex acts that have the normative qualities of patriarchal, heterosexual marriage. Additionally, a privacy-focused legal intervention to extend protection and recognition to non-normative sexualities, could have problematic implications for queer politics itself. This article is an assessment of the ‘privacy argument’ as articulated in the Naz Foundation judgment, against the backdrop of this troubled relationship between non-normative sexualities and dominant understandings of privacy. While the court in Naz has moved away from a narrow ‘space-based’ notion of privacy, it continues to view privacy as a negative freedom, the scope of which is rather limited. Additionally, while the exclusivity and ideological dominance of the ‘private’ is busted by dissociating the claim to privacy with heterosexual marriage, the judgment introduces other normative codes for sexual relationships that are protected by privacy. The article notes that the privacy analysis in Naz Foundation has both possibilities, which must be emphasized and limitations, which must be regarded as areas of further struggle. In the final analysis, one must however acknowledge the limited role that any privacy-based intervention can play in counter-heteronormative struggles, since the ideas of ‘natural’ and ‘unnatural’ sexualities are left unexamined, no matter how one may frame the privacy question.