The landmark Supreme Court’s verdict declaring the right to privacy to be a fundamental right has ushered in hope for the gay and LGBT community that was dealt a blow by the same court when it criminalised sex between two consenting adults of same sex and brought it out of the ambit of Section 377.
In today’s judgment, the apex court concluded that privacy includes at its core the preservation of personal intimacies and that sexual orientation is an essential attribute of privacy. The court held that privacy and protection of sexual orientation lie at the core of the fundamental rights under Articles 14, 15 and 21 of the Constitution.
“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion,” the court held, adding that “the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted.”
The Supreme Court further held that “discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. 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.”
While the Supreme Court in its previous judgment had taken a majoritarian view, the latest judgment held that popular acceptance cannot be the basis to disregard rights.
The court revisited its earlier decision in the Suresh Kumar Koushal vs Naz Foundation case to build upon its decision. The case was decided in Delhi High Court and later brought to the Supreme Court of India. The Delhi High Court had held that Section 377 of the Indian Penal Code (IPC), insofar as it criminalises consensual sexual acts of adults in private, was in violation of fundamental rights guaranteed under Articles 14 (equality before law), 15 (Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty) of the Constitution. The High Court had clarified that Section 377 will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors.
The High Court held that the Section 377 denied dignity to an individual and criminalised their core identity on the basis of their sexuality adding that it also violated Article 14 by targeting homosexuals as a class.
“The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State,” adding that “In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21…” the High Court had held.
The matter was brought to the Supreme Court and Justice Singhvi spoke for the bench and found fault with the judgment. The court said that “The Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted (as per reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”
The court also said that the High Court “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions,” stressing that “they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature.”
In the latest judgment, the nine-judge bench held that both the arguments in the earlier verdict could not be taken as valid constitutional basis for disregarding a claim based on privacy under Article 21.