Right to privacy verdict reopens 377 debate

Possibly moving a step closer to decriminalising gay sex, the Supreme Court, in its order on right to privacy, ruled that “sexual orientation is an essential attribute of privacy”. It said 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”.

On the matter of Section 377, the court said the right to privacy cannot be denied, even if there is a minuscule fraction of the population which is affected, and “the majoritarian concept does not apply to Constitutional rights”.

Terming “sexual orientation an essential attribute of privacy”, four judges in the bench, including Chief Justice JS Khehar, dealt a telling blow to the December 2013 verdict of a two-judge bench of the apex court that made homosexual acts even in private between consenting adults an offence punishable by up to ten years in jail.

“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,” said the judges.

The observation is significant as curative petitions – the last legal remedy – filed by gay rights activists seeking review of the decision to criminalise homosexual acts is pending before a constitution bench of the top court.

According to India Today, senior advocate Anand Grover, who represents the Naz Foundation spearheading the battle for the LGBT community, said, “The remarks are going to have a huge impact on the hearing of our petitions which will come up soon. Yes we are winning.”