SC’s Sec 377 approach

The Supreme Court’s decision to review its own four-year-old verdict criminalising consensual sexual relationship in private between adults of same gender was triggered five months ago, when a 9-judge bench had ruled that the LGBTQ community members’ sexual orientation had an inseparable relationship with their fundamental right to privacy.

In the unanimous verdict declaring right to privacy as part of right to life, Justice D Y Chandrachud, who authored the main judgement for the 9-judge bench, was joined by Justice Sanjay Kishan Kaul in declaring that the SC’s 2-judge bench had erred in December 2013 by upsetting a Delhi High Court’s 2009 judgement decriminalising Section 377, which punished same sex relationship in private between adults.

The 9-judge bench had scythed through the logic in the 2013 judgement in Suresh Kumar Koushal v NAZ foundation saying it was in conflict with LGBT community’s claim based on right to privacy, entrenched in right to life guaranteed under Article 21of the Constitution.

“Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the individual’s dignity and self-worth. Equality demands that the sexual orientation of each individual must be protected on an even platform. 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,” said Justice Chandrachud.

He said: “That ‘a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or trans-genders’ (as observed in the twojudge bench judgement) is not a sustainable basis to deny the right to privacy. ..The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection,” he had said.

Justice Kaul had said: “I am in agreement with the view of Justice Chandrachud, who states that right of privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights and the courts are often called up to take what may be categorized as a nonmajoritarian view, in the check and balance of power envisaged under the Constitution. One’s sexual orientation is an attribute of privacy.”

Justice Chandrachud had said: “The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be ‘so-called rights’. The expression ‘so-called’ seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy-based claims of LGBT population. 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. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity without discrimination.”

He said: “The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with privacy-dignity based claims of LGBT persons on this aspect.”

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