In the August of 2017, a landmark judgment was passed by the Supreme Court of India. A nine-judge constitutional bench had unanimously declared that individual privacy is a guaranteed fundamental right.
The honourable judges of the Supreme Court had said that Right to Privacy is a fundamental right which will be protected by Part III of the Indian Constitution much like Right to Life and Personal Liberty under Article 21.
During the course of that judgment, the bench had made some observations that may have a bearing on deciding the constitutionality of Section 377. The Supreme Court is in the process of hearing a bunch of petitions to quash the ‘Victorian Era’ law that criminalises gay sex, and the judgment on the Right to Privacy has been invoked several times by counsel of petitioners.
Let’s recall what the judgment had said on the issue:
The bench had observed that Right to Privacy is a right which protects the inner sphere of an individual from interference from both state, and non-state actors and allows the individuals to make autonomous life choices. They had also said that privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation; privacy also connotes a right to be left alone.
The judges had also pointed out at various excerpts of the 2013 Supreme Court judgment which had revoked the 2009 Delhi High Court verdict decriminalizing gay sex.
For instance, they countered the 2013 judgment which had said “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”, saying this is no reason that they should be denied their right to privacy.
The bench had emphasized that they should not be denied their rights and be discriminated against because their “views, beliefs or way of life does not accord with the mainstream”.
They noted that discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual and 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.
The bench had also expressed their ire at the previous SC judgment calling gay rights “so-called”, and said, “Their rights are not 'so-called' but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity."
The judges also found the citation of the SC 2013 judgment that “only 200 people have been prosecuted under Section 377 of the IPC in the last more than 150 years” unsustainable.
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