Two path-breaking past verdicts, holding right to privacy as a fundamental right and granting 'third gender' status to transgenders, have been heavily relied upon by the Supreme Court in its judgement decriminalising consensual gay sex in private.
A five-judge constitution bench headed by Chief Justice Dipak Misra unanimously struck down partially the British-era penal law that criminalised the consensual sexual acts.
Four concurring verdicts, penned by the CJI, Justices R F Nariman, D Y Chandrachud and Indu Malhotra, extensively relied upon a 2017 nine-judge bench verdict in the K S Puttaswamy case that accorded privacy rights the status of a fundamental right.
The judges also took note of another apex court judgement in the National Legal Services Authority case holding that the right to gender identity and sexual orientation were available to transgenders "just like men and women".
CJI Misra, in the lead judgement, said "after the nine-Judge bench decision in Puttaswamy, the challenge to the vires (validity) of Section 377 IPC has been stronger than ever."
Justice R F Nariman quoted the privacy judgement and said "a nine-Judge Bench of this Court unanimously declared that there is a fundamental right of privacy which enured in favour of all persons, the concomitant of which was that the right to make choices that were fundamental to a person's way of living could not be interfered with by the State without compelling necessity and/or harm caused to other individuals."
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