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Right to Privacy – Includes sexual orientation
Hon’ble Dipak Misra, C.J.I., R.F. Nariman, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Indu Malhotra, JJ., have held that while testing the constitutional validity of section 377, I.P.C., due regard must be given to the elevated right to privacy as has been recently proclaimed in Puttaswamy case. We shall not delve in detail upon the concept of the right to privacy as the same has been delineated at length in Puttaswamy case. In the case at hand, our focus is limited to dealing with the right to privacy vis-à-vis section 377, I.P.C. and other facets such as right to choice as part of the freedom of expression and sexual orientation. That apart, within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s autonomy is innate to him/her. It is an inalienable part of his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice.

It has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. That is why it is his/her natural orientation which is innate and constitutes the core of his/her being and identity. That apart, on occasions, due to a sense off mutuality of release of passion, two adults may agree to express themselves in a different sexual behavior which may include both the genders. To this, one can attribute a bisexual orientation which does not follow the rigidity but allows room for flexibility.
Navtej Singh Johar v. Union of India, 2018 (190) AIC 1 (SC)

No writ of habeas corpus could be issued to person in police custody
The appellants have assailed the decision of the High Court of Judicature at Bombay dated 21st March, 2018 in Writ Petition No. 1353 of 2018, whereby the High Court allowed the writ petition preferred by the respondent, for issue of writ of habeas corpus directing the appellants to produce her husband who, according to the respondent, was illegally and unlawfully detained by the police in connection with FIR No. 131/2018.

The decision of the High Court is assailed essentially on two counts. First, that no writ of habeas corpus could be issued in respect of a person who was in police custody in connection with a criminal case under investigation, pursuant to an order of remand passed by the Court of competent jurisdiction. Second, in any case, the High Court should have refrained from making scathing observations against the concerned police officials and the said remarks should be expunged.

When the Investigating Officer alongwith his subordinates went to the premises of Rizwan Alam Siddique to serve the said notice, it transpired that Rizwan Alam Siddique was destroying the evidence in his mobile phone as well as in his laptop and, therefore, the Investigating Officer took a conscious decision to arrest him by taking assistance from the nearest police station i.e., Versova Police Station. After his arrest, he was produced before the jurisdictional Magistrate on 17th March, 2018 within the statutory period. The jurisdictional Magistrate gave the police custody of Rizwan Alam Siddique until 23rd March, 2018 after recording his satisfaction for such police remand.

The respondent, however, rushed to the High Court and filed a writ petition on 18th/19th March, 2018, being Writ Petition No. 1353/2018 praying for a direction to the appellants (respondents in the writ petition) to produce her husband before the Court and to justify his detention in accordance with procedure established by law. Further relief claimed was to set her husband Rizwan Alam Siddique at liberty.

The Division Bench of the High Court perused the record produced by the Public Prosecutor, including the entry in the police diary, the remand report and other documents. It held that the said record did not show necessary compliance of the mandate of law before the arrest of Rizwan Alam Siddique. After recording that finding, it went on to observe that such arrest infringes the valuable right guaranteed under Article 21 of the Constitution and, therefore, acceded to the request of the respondent to set Rizwan Alam Siddique at liberty forthwith. At the same time, the High Court went on to make scathing observations against the police officials.

Aggrieved by this decision, the appellants have filed the present appel. The respondent, on the other hand, has supported the decision of the High Court and submits that the appeal is devoid of merit. It is also brought to our notice that Rizwan Alam Siddique has already been released after the impugned judgment. In response to this submission, Counsel for the appellants would submit that the appellants are more concerned about the scathing observations made by the High Court against the police officials and would be more than content if liberty is granted to the police to proceed against the said Rizwan Alam Siddique in accordance with law.

Hon’ble Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ., have held that the question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in the case of Saurabh Kumar through his father v. Jailor, Koneila Jail and another, and Manubhai Ratilal Patel v. State of Gujarat and others. It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18th/19th March, 2018 and decided by the High Court on 21st March, 2018 her husband Rizwan Alam Siddique was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17th March, 2018 and which police remand was to ensure till 23rd March, 2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued.

The High Court, in our opinion, should not have taken umbrage to the submission made on behalf of the Deputy Commissioner of Police that the respondent’s husband could be released if so directed by the Court. As aforesaid, the DCP has voluntarily released the accused who was in police custody pursuant to a judicial order in force. The High Court ought not to have made scathing observations even against the Investigating Officer without giving him opportunity to offer his explanation on affidavit.

Suffice it to observe that no writ of habeas corpus could be issued in the fact situation of the present case, the High Court should have been loath to enter upon the merits of the arrest in absence of any challenge to the judicial order passed by the Magistrate granting police custody till 23rd March, 2018 and more particularly for reasons mentioned in that order of the Magistrate. In a somewhat similar situation, this Court in State represented by Inspector of Police and others v. N.M.T. Joy Immaculate, deprecated passing of disparaging and strong remarks by the High Court against the Investigating Officer and about the investigation done by them. Accordingly, we have no hesitation in expunging the observations made in the impugned judgment against the concerned police officials in the facts of the present case.
State of Maharashtra v. Tasneem Rizwan Siddiquee, 2018 (190) AIC 122 (SC)

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