6.10.10. Right to choose

Right to Choose guarantees individuals the right to personal autonomy, which means that a person's decisions regarding his or her personal life are respected so long as he/she is not a nuisance to society. However, higher judiciary has taken differing opinions on this right.

♤ Supreme Court in Hadiya Case in 2018 held that a person's right to choose a religion and marry is an intrinsic part of a person’s meaningful existence. Neither the State nor “patriarchal supremacy” can interfere in his/her decision. Freedom of faith is essential to his/her autonomy; choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow, The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme.

♤ Patna High Court in the Confederation of Indian Alcoholic Beverage Companies v State of Bihar (2016) held the imposition of “prohibition” in Bihar as unconstitutional. It addressed the question of imposition of prohibition in terms of its impact on the right to life and liberty of a citizen. Supreme Court, however, has stayed the operation of the Patna High Court judgment.

♤ Bombay High Court in High Court on Its Own Motion v State of Maharashtra (2016), read in “choice” as a ground on which a woman may lawfully seek an abortion, even though the Medical Termination of Pregnancy Act, 1971 only permits abortions on the ground that the pregnancy might affect the mental health of the woman.

♤ Bombay High Court, in Shaikh Zahid Mukhtiar v State of Maharashtra (2016), struck down the sections of Maharashtra Animal Preservation Act, 1976, on the grounds that it is a breach of Article 21, specifically the right to consume food of one’s choice in private.

♤ Supreme Court overturned Delhi High Court’s judgment decriminalizing voluntary homosexual acts on the premise (among other things) that it was a violation of the right to privacy of the individual, which is part of the right to life of a person (Suresh Kumar Koushal v Naz Foundation (2014)). It refused to even engage in the argument that LGBTQ persons may have rights.