Privacy judgment criticises previous SC ruling on Section 377

The landmark judgment on the right to privacy by a nine-judge bench of Supreme Court on Thursday criticised an earlier judgment of the apex court which reinstated the Indian Penal Code's Section 377 that declares homosexuality unnatural and a legal offence.

The landmark judgment by the bench which also had Chief Justice J.S. Khehar said the rights of the LGBT and sexual minorities are not "so-called" but are "real rights founded on sound constitutional doctrine".

Thursday's judgment called the previous judgment in the Suresh Kumar Koushal vs Naz foundation case a "discordant note" which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.

In the 2013 judgment, the two judge bench of justices G. S. Singhvi and S. J. Mukhopadhaya had argued that in 150 years, less than 200 persons had been prosecuted under Article 377.

The judgment that overturned a previous judgment by Delhi High Court that decriminalised homosexual acts also said "plight of sexual minorities" cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

Thursday's judgment said neither of the two arguments can be regarded as "valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution".

"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," it said about the 2013 judgment.

"This is an inappropriate construction of the privacy based claims of the 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 of every individual without discrimination," said a portion of the 547-page judgment.

This latest court order was hailed by legal experts as well as activists as a landmark, that can positively influence the case for decriminalising consensual homosexual acts.

Eminent lawyer Rebecca John welcomed the decision and said it will have impact on the case on Section 377.

She pointed out that out of the nine judges, five said in the judgment that that earlier apex court judgment that once again made homosexual practice in privacy a criminal offence was a bad law.

"I imagine it (case on section 377) will be put on fast track now. It will be very difficult to continue to earlier judgment on 377 now," John told IANS.

Naz Foundation, a NGO working on sexual health which was a party in the 2013 case, also welcomed the decision.

"The judgement has far reaching consequences, especially for Article 377 because the Delhi High Court judgement was based on the argument of privacy and therefore it is definitely going to impact the Supreme Court hearing," Anjali Gopalan of the foundation told IANS.

"More than that a few years ago, there was a professor Ramchandra Siras of Aligarh Muslim University where his colleague got some media guy to do a sting operation and went into his house to film him ans the man subsequently committed suicide. So, with a ruling like this, such violation will not happen. I am very glad that the Supreme Court has given such a progressive judgement," she added.

--IANS

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