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.