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Right to Privacy: Very little scope to defend Section 377 now, says retired HC Judge A P Shah who read it down

Delhi High Court’s order read down Section 377 pertaining to sexual intercourse “against the order of nature” so as to decriminalise sex between consenting adults while maintaining that the section will still be applicable in cases of non-consensual sex or sex with minors.

Written by Shalini Nair | New Delhi | Updated: August 25, 2017 10:36 am
section 377, decriminalise homosexuality, ap shah, homosexuality in india, right to privacy, privacy fundamental right, privacy and sexual orientation, indian express news Justice Shah finds three aspects of Thursday’s judgment telling.

The nine-judge bench Supreme Court judgment upholding the right to privacy as a fundamental right leaves little scope for those in support of Section 377, said Justice A P Shah, who as Chief Justice of Delhi High Court had delivered the July 2009 judgment decriminalising homosexuality, before it was set aside later.

“I personally feel that there is a strong possibility that the Constitution bench examining the curative petition is bound to go by what the Supreme Court said in course of its judgment on Thursday. There is very little scope now for those wanting to support Section 377. The only argument that can be advanced by them is that of reasonable restriction [on the fundamental rights]. But invading the bedroom can’t be considered reasonable restriction,” Justice Shah told The Indian Express.

Delhi High Court’s order read down Section 377 pertaining to sexual intercourse “against the order of nature” so as to decriminalise sex between consenting adults while maintaining that the section will still be applicable in cases of non-consensual sex or sex with minors. The order was set aside by a Supreme Court two-judge bench comprising G S Singhvi and S J Mukhopadhaya.

Justice Shah finds three aspects of Thursday’s judgment telling. “First, the court holding that the sexual orientation is part of privacy and the unanimous declaration that privacy is a fundamental right,” he said. He added that both the Naz Foundation judgment as well as the 2014 judgment in National Legal Services Authority vs Union of India, a case pertaining to transgender rights, interpreted Article 15 that states no one can be discriminated against, among various things, on the basis of sex to include even sexual orientation. “The Singhvi judgment rejected the Article 15 argument without any explanation,” he said.

In addition to these, he said, Thursday’s judgment also strongly rejects the two-judge SC bench argument of the issue affecting only a “ minuscule population”. “In our Delhi High court judgment, we had quoted some very important international judgment from the UK, US, South Africa, Canada and Australia pertaining to homosexuality. We had also mentioned reports of the Wolfenden Committee [responsible for decriminalising homosexuality in the UK], International Human Rights Commission and European Human Rights Commission… The Supreme Court has considered many of these in its judgment [of Thursday],” he said.

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  1. A
    ak dev
    Aug 25, 2017 at 4:55 pm
    A judge can also be a g a y. Shouldn't people have the freedom to be judged by a non-ga y judge.
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    1. B
      Bad Al
      Aug 25, 2017 at 6:42 pm
      Look what a RSS follower is saying!
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    2. S
      Sankaran Krishnan
      Aug 25, 2017 at 4:00 pm
      Now the Court has to define the meaning of Right to Privacy or else everyone will interpret what they say is right and wrong and then in that case everyone has to approach the courts as if the Courts don't have any other work !!! Judiciary at times fails to understand the importance of their own verdict and before delivering they should analyse all aspects instead of delivering the justice lethargically ???
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      1. H
        heena
        Aug 25, 2017 at 1:18 pm
        The cons ution and the governance for a country are derived from the dignified, peaceful, healthy and equality to be maintained in living of present society at this point of time. This means when we take such action shall be good for the society at present time, if not shall be curtailed. Non consenting or homo uality is not only against the present society, it is also condemnable.
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        1. P
          Parisflowershop20
          Aug 25, 2017 at 1:13 pm
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          1. K
            Kg
            Aug 25, 2017 at 1:06 pm
            As far as article 377 is concerned, the bankruptcy and illiteracy of Indian Hindus is evident, the inheritors of very culture which considered sax and uality as a fluid en y, sax as a life's need just as was food, choice of saxuality just like choice of food,whose all God's and Godesses chose their spouse themselves in swayamvar (I chose my partner myself), who wrote kamasutra and who depicted sax acts on thier divine temples, who said KAMA is one of the four goals of life, the very same Hindus, after 800 years of Muslim and 150 years of Christian Rule, are fighting in thier own court to get homosaxuality be free from guilt and sin. Travesty of being ruled.When you start to believe that the concept of your oppressor is your own.
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            1. S
              Simpleton
              Aug 25, 2017 at 1:56 pm
              There is a blog site in internet which discusses this issue. Just search in Google: "Captain Ajit Vadakayil" He maintains a good blog on such subjects.
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