NEW DELHI – With the Friday’s landmark judgement of Indian Supreme Court which declared privacy is a fundamental right of all Indians, India has also moved a step closer to decriminalising gay sex once again.
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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”.
This ruling is expected to have an implication on the curative petition on Section 377, pending before a five-judge Constitution Bench of the Supreme Court. On 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”.
According to Indian Express, the court expressed its disagreement with the reasoning of a two-judge Bench of the Supreme Court in the Suresh Kumar Koushal vs Naz Foundation case of December 2013, and the way it had dealt with the privacy-dignity based claims of LGBT persons. It, however, held that since the curative petition is pending before the Supreme Court, the “constitutional validity would be decided in an appropriate proceeding.
The colonial-era IPC Section 377 criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community (lesbian, gay, bisexual, transgender, queer, intersex).
In July 2009, the Delhi High Court had read down IPC Section 377, and held that it is in violation of Article 14, 15 and 21 of the Constitution insofar as it criminalises consensual sexual acts of adults in private. But in December 2013, the two-judge Supreme Court Bench overturned the Delhi High Court order. A curative petition was then filed by Naz Foundation and others in March 2014, the Indian Express reported.
After the 2013 judgment from the top court, a number of celebrities and gay personalities had asked the court for a rethink. The court had referred it to the Chief Justice. The petition, which challenges Section 377 on the ground that it violates the privacy of people is still pending.