In August last year, while delivering its verdict on the right to privacy case, the Supreme Court (SC) made a strong case for the freedom of sexual orientation. “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual,” the court noted. The unanimous ruling of the nine-judge bench had strong words for the 2013 verdict of the apex court which had set aside the Delhi High Court’s 2009 judgment overturning Section 377, the colonial-era law that criminalises homosexuality. “Privacy includes at its core the preservation of personal intimacies… and sexual orientation,” the court said.
On Monday, a three-judge bench of the SC, comprising Chief Justice Dipak Misra, and Justices A.M. Khanwilkar and D.Y. Chandrachud, reaffirmed the spirit of this landmark verdict by referring to a Constitution Bench a petition seeking to repeal Section 377. The petition filed by five members of the LGBTQ community said that they live in fear of police action because of their sexual preferences. The court’s response to this petition is worded in the progressive language that was the hallmark of the privacy verdict: “A section of people or individuals who exercise their choice could never remain in a state of fear”.
The apex court’s 2013 verdict was disappointing because it had pushed the country back towards a law that drew from Victorian notions of morality. It had held that there was no need to overturn Section 377 because there was, at most, “a minuscule fraction” of homosexuals in India. While re-criminalising homosexuality, the two-judge bench had passed the buck to the legislature, asking it to debate the issue. But the privacy verdict allows the judiciary to reclaim its role as the custodian of the rights of the vulnerable individual and minority. The nine-judge bench that delivered this verdict questioned the majoritarian underpinnings of the 2013 ruling: “In a democratic Constitution founded on the rule of law, their [minority] rights are as sacred as those conferred on other citizens to protect their freedoms and liberties”. The bench also reminded the judiciary of its counter-majoritarian role: “Discrete and insular minorities face grave dangers for the simple reason that their way of life does not accord with the mainstream. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their personal freedoms and liberties”.
The August 2017 verdict had noted that the contours of the right to privacy would develop over time. Monday’s decision to revisit Section 377 allows the judiciary to do just that. It is hoped that the Constitution Bench — whenever it is constituted — will support the rights which the privacy verdict had championed.