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6.1. It is further contended that the Act imposes arbitrary restriction on the freedom of speech and expression of the transgender community and also breaches their fundamental right to privacy. Thus, the said legislation is violative of Articles 19(1) and 21 of the Constitution. It is also contended that the said legislation is against the letter and spirit of the Supreme Court decision in National Legal Services Authority (NALSA) v. Union of India1 which has declared eunuchs etc., as third gender and also directing the Central and State Governments to treat them as socially and educationally backward classes of citizens. Petitioners have also relied upon the decision (2014) 5 SCC 438 of the Supreme Court in K.S.Puttaswamy v. Union of India2 to contend that right to privacy is one of the facets of the right to life and dignity and thus is a cherished right under Article 21 of the Constitution. Impugned legislation violates the right to identity, personal autonomy and the right to be left alone, all facets of the right to privacy of the transgender people.

30.4. Thereafter, Supreme Court observed that our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity which as a constitutional value finds adequate expression in the Preamble. The Preamble contains the constitutional precepts to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective wellbeing of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the freedoms (Article 19) and in the right to life and personal liberty (Article 21).

(2016) 7 SCC 761 30.6. It is in that context, Supreme Court repelled the submission that to recognise the right to privacy would require a constitutional amendment and cannot be a matter of judicial interpretation. Supreme Court asserted that right to privacy is an element of human dignity. Sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so, privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution. To recognise the value of privacy as a constitutional entitlement is not to fashion a new fundamental right by a process of amendment. 30.7. Supreme Court however noted that in the evolution of the doctrine of right to privacy and dignity in India which placed the dignity of the individual and the freedoms and liberties at the forefront, there had been a few discordant notes. One of them being ADM, Jabalpur v. Shivakant Shukla12 was particularly discussed whereafter, the majority view that the remedy for enforcement of the right to life or liberty would stand suspended when an order is issued by the President under Article 359(1) of the Constitution was found to be seriously flawed and expressly overruled. The dissenting judgment rendered by Justice H.R.Khanna that the suspension of the right to move any court for the enforcement of the right under Article 21 upon a proclamation of emergency would not affect the enforcement of the basic right to life and liberty has been expressly approved. Life and personal liberty are inalienable to human existence. These rights are primordial rights. They constitute rights under natural law. The human element in the life of an individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. Supreme Court declared that the view taken by Justice Khanna was the (1976) 2 SCC 521 correct view and accordingly overruled the decision in ADM Jabalpur (supra).

31. In Navtej Singh Johar (supra), Constitution Bench of the Supreme Court was considering the constitutional dimension of the contention that right to sexuality, right to sexual autonomy and right to choice of a sexual partner are part of the right to life guaranteed under Article 21 of the Constitution; the further contention was to declare Section 377 IPC as unconstitutional. It may be mentioned that two-Judge Bench of the Supreme Court in Suresh Kumar Koushal (supra) had overturned the decision rendered by the Delhi High Court in Naz Foundation V. Government (NCT of Delhi)15. The correctness of the said decision was also an issue in Navtej Singh Johar (supra). 31.1. Chief Justice Deepak Misra in the leading judgment adverted to the Delhi High Court decision in Naz Foundation (supra). Delhi High Court had taken the view that Article 15 of the Constitution prohibits discrimination on several enumerated grounds including sex. Delhi High Court preferred an expansive interpretation of the word 'sex' so as to include prohibition of discrimination on the ground of sexual orientation and that sex discrimination cannot be read as applying to gender simpliciter. According to the Delhi High Court, Indian Constitution reflects the value of inclusiveness which is deeply ingrained in the Indian society and those who are perceived by the majority as deviants or different are not to be, on that score, excluded or ostracised. Where a society displays inclusiveness and understanding, LGBT (Lesbian, Gay, Bisexual and Transgender) persons can be 2009 SCC OnLine Del 1762 assured of a life of dignity and non-discrimination. Delhi High Court opined that the Constitution does not permit any statutory criminal law to be held captive of the popular misconception of who the LGBTs are. Social morality has to succumb or give way to the higher concept of constitutional morality. On the above reasons, Delhi High Court declared Section 377 IPC as violative of Articles 14, 15 and 21 of the Constitution insofar as it criminalises consensual sexual acts of adults in private. 31.2. The Delhi High Court judgment in Naz Foundation (supra) was challenged in Suresh Kumar Koushal (supra). Supreme Court opined that acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and to the circumstances in which it is executed. Section 377 IPC would apply irrespective of age and consent; it does not criminalise a particular people or identity or orientation but only identifies certain acts which, when committed, would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation. According to the Bench, those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes. People falling in the latter category cannot claim that Section 377 IPC suffers from the vice of arbitrariness and irrational classification. While holding such a view it was observed that only a minuscule fraction of the country's population constitutes LGBT and in last more than 150 years, less than 200 persons have been prosecuted under Section 377 IPC and therefore cannot be made a sound basis for declaring Section 377 IPC ultra vires the provisions of Articles 14, 15 and 21 of the Constitution. The submission advanced that Section 377 IPC had become a pernicious tool for perpetrating harassment, blackmail and torture on those belonging to LGBT community was repelled by stating that such treatment is neither mandated by the Section nor condoned by it. Mere fact that the section is misused by police authorities and others cannot be a reflection on the vires of the Section.