How 'Right to Privacy' gave new life to Section-377 battle
Reading down the Section 377 of IPC, the Supreme Court gave a landmark judgement on Thursday. Notably, the fight got a new lease on life after the Supreme Court in 2017 stated privacy was a fundamental right. This judgement extended to sexual orientation and brought a wave of cheer to the sexual minorities. Here's looking at the relation between the two.
Ruling privacy is a fundamental right, the nine-judge bench of the SC in August '17 said, "sexual orientation is an essential attribute of privacy." The bench noted Articles 14, 15 and 21 of the Indian Constitution guaranteed the right to privacy and protection of sexual orientation. Discrimination on basis of sexual orientation was deeply offensive, the bench noted in the 547-page judgement.
"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," Justice DY Chandrachud, a member of the bench, had said.
The court's stand on sexual orientation was contradictory to the earlier one in 2013 where it had re-criminalized gay sex terming it as 'unnatural'. The verdict was welcomed, obviously. The executive director of Naz Foundation (India) Trust (the original petitioner against Section 377), Anjali Gopalan, said this judgement provided some a protection layer to the LGBT community while saying it was a huge step.
With privacy becoming a fundamental right, there isn't much ground to argue the constitutional validity of Section 377, judge Justice A P Shah, who as Chief Justice of Delhi HC had de-criminalized the section, said. "The only argument that can be advanced by them is that of reasonable restriction [on the fundamental rights]," he had said while adding invading bedroom can't be considerable restriction.
