The lesbians, gays, bisexuals and transgenders (lGBT) community has reason to celebrate the Supreme Court decision to declare right to privacy a fundamental right. The majority of five Judges in the nine-Judge Bench said that the SC’s decision to criminalise gay sex under Section 377 of the Indian Penal Code (IPC) requires to be reconsidered as these are ‘intrinsic’ to the lGBT community’s dignity and privacy.
The community represented by Naz Foundation has already filed a review petition against the December 11, 2013 verdict which is pending before a larger Bench.
In 2009, the Delhi High Court had de-criminalised gay sex and gave recognition to the sexual orientation of the lGBT community. However, their joy was short-lived. In December 2013, a two-Judge Bench of apex court overruled the HC decision. Scripting the judgment on right to privacy, Justice DY Chandrachud, said, “As society evolves, so must constitutional doctrine.”
Writing the judgment for himself and three other Judges on the Bench — CJI JS Khehar, Justices RK Agrawal and S Abdul Nazeer — he said that constitutional interpretation by courts has been to achieve justice, liberty, and dignity to each citizen. He pointed out two past decisions of the SC as “aberrations”. One was the ADM Jabalpur case where by a 4:1 majority, the SC ruled that fundamental rights will remain suspended during Emergency and citizens cannot have recourse to courts. The other case, was the Naz Foundation vs Suresh Kaushal case relating to Section 377.
The four Judges overruled the ADM Jabalpur case in order to erase it from the annals of judicial history forever. But while coming to the second case, the judgment said, “The right to privacy and protection of sexual orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual”.
Describing the twin reasoning of the apex court to strike down the HC decision to be “flawed”, the Bench said, “We disagree with the manner in which the Kaushal (case) has dealt with the privacy-dignity claims of lGBT persons.”
Supporting them was Justice SK Kaul, who in his separate judgement said, “I am in agreement with Justice Chandrachud that the right of privacy cannot be denied, even if there is a miniscule fraction of the population that is affected…One’s sexual orientation is undoubtedly an attribute of privacy.”
Since the issue is pending before a larger Bench, the five judges left it to the appropriate Bench to finally decide the Constitutional validity of Section 377. However, this decision is sure to have a bearing on the outcome of the Naz Foundation’s review petition.