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Right to Privacy: Protection of sexual orientation at core of fundamental rights, says Supreme Court

The court expressed its disagreement with the reasoning of a two-judge Bench of the Supreme Court in the Suresh Kumar Koushal vs Naz Foundation case of December 2013, and the way it had dealt with the privacy-dignity based claims of LGBT persons.

Written by Shalini Nair | New Delhi | Updated: August 25, 2017 10:45 am
right to privacy, lgbt rights, homosexuality, section 377, privacy right sexual orientation, indian express news It also differed with the two-judge Bench’s observation that only “a miniscule fraction of the country’s population constitutes LGBT and in the last more than 150 years, less than 200 persons have been prosecuted”.

Moving a step closer to decriminalising gay sex, the Supreme Court, in its order on right to privacy, ruled that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.

This ruling is expected to have an implication on the curative petition on Section 377, pending before a five-judge Constitution Bench of the Supreme Court. On Section 377, the court said the right to privacy cannot be denied, even if there is a minuscule fraction of the population which is affected, and “the majoritarian concept does not apply to Constitutional rights”.

The court expressed its disagreement with the reasoning of a two-judge Bench of the Supreme Court in the Suresh Kumar Koushal vs Naz Foundation case of December 2013, and the way it had dealt with the privacy-dignity based claims of LGBT persons. It, however, held that since the curative petition is pending before the Supreme Court, the “constitutional validity would be decided in an appropriate proceeding”. Read | Very little scope to defend Section 377 now, says retired HC Judge A P Shah who read it down

‘’Section 377 is now on its way out. The judgment explicitly mentions Section 377 and is expected to have a strong implication on the curative petition. The judgment, very clearly and directly, disagrees with the Supreme Court’s order in the Koushal case. We will now move forward with our case since we have everything in our favour,’’ said Anand Grover, senior advocate appearing on behalf of Naz Foundation.

The colonial-era IPC Section 377 criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community (lesbian, gay, bisexual, transgender, queer, intersex).

In July 2009, the Delhi High Court had read down IPC Section 377, and held that it is in violation of Article 14, 15 and 21 of the Constitution insofar as it criminalises consensual sexual acts of adults in private. But in December 2013, the two-judge Supreme Court Bench overturned the Delhi High Court order. A curative petition was then filed by Naz Foundation and others in March 2014.

In today’s ruling, the nine-judge Bench struck a discordant note with two of the main arguments put forward by the two-judge Bench in 2013. Disagreeing with the two-judge Bench’s use of the term ‘’so-called rights” with reference to the rights of the LGBT population, the court today stressed that these are not illusory, but are real rights founded on sound constitutional doctrine.

It also differed with the two-judge Bench’s observation that only “a miniscule fraction of the country’s population constitutes LGBT and in the last more than 150 years, less than 200 persons have been prosecuted”. The court today held that “the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment.’’

‘’The court has held that fundamental rights are not subject to minority or majority and also that the rights of the LGBT persons are not illusory. It has showed that the Supreme Court’s reasoning in the 377 order was flawed,’’ said Amritananda Chakravorty, an advocate who worked on the Naz Foundation case.

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  1. V
    Vinod
    Aug 25, 2017 at 11:19 am
    Two things are completely personal and private: Which religion one person wants to follow and with whom one wants to have . On these two points, millions of people have lost their lives in the world. The society and our families want to decide our religion and our life partner.
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    1. V
      veradd
      Aug 25, 2017 at 9:59 am
      DEATH OF INDIA IN 2025 : as countries are known from its people india will be dead in few years. Thats what happens when people are shown Dirty Politcal news, Rapres, Murder, Destruction, Loot, Bad News 24 HOURS A DAY by Media channel for TRP. People will go crazy, nervous, mad seeing hearing such news 24 hours. Psychologically they will develop negative frame of mind leading to hopelessness. Media houses are paid by BJP and Congress And Media alwasy protrays Negative news 100 People are already fed up with 24 hours rape murder loot dirty political news SO OUR PREDICTION IS MOST OF INDIANS WILL PSYCHOLOGICALLY BE SUICIDAL, ANXIETY RIDDEN, NEGATIVE THINKING, HOPELESS frame of mind. FROM : SOCIETY FOR BETTERMENT OF HUMANS, Delhi
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      1. S
        sohail
        Aug 25, 2017 at 9:36 am
        these homo - bustards in judiciary are promoting homo culture to detroy humanity are sons of lucifer shaitan and rakshas
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        1. P
          Patidar
          Aug 25, 2017 at 11:09 am
          Wrong. Consider the amendment at par with top countries. We are not living in Gulf or some concentration camp. This act will reduce crimes and incest. Incest is a silent killer in India, a compromise not brought out by the victims in India. Mostly children.
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        2. C
          chander
          Aug 25, 2017 at 8:16 am
          Only in India judges are allowed to create new laws! In other democratic countries the parliament or the people's representatives create laws and judges interpret them. Either our parliamentarians are not doing their jobs or our judges assume they are above the MPs and thus they can legislate laws.
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