The ruling against Section 377 was called ‘discordant’ to the fundamental ‘right to privacy’ by the Supreme Court
After delivering a historic ruling on triple talaq earlier this week, the Supreme Court, this time through a nine-judge bench, Thursday followed it up with yet another monumental decision; this time by declaring the right to privacy as a fundamental right, triggering a wave of celebrations in the country.
We’re yet to witness its impact on the Centre’s mandate for compulsorily having an Aadhar Card to avail benefits of various schemes, but what we’re certain of is its impact on the legalisation of Section 377 of the Indian Penal Code.
One of the two major past ‘discordant notes’ to this ruling was pointed out to be the Suresh Kumar Koushal v. Naz Foundation case, by Justice DY Chandrachud in concurrence with by Chief Justice JS Khehar and Justices RK Agrawal and Abdul Nazeer.
Discarding the idea that lesbians, gays, bisexuals or transgenders comprise a ‘minuscule fraction’ of the country’s population for their rights to be overlooked, the judges all but paved the for legalisation of Section 377.
“…Sexual orientation is an essential attribute of privacy. 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. 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.”
Justice Kaul summed it up by stating that the right of privacy cannot be denied ‘even if there is a miniscule fraction of the population which is affected.’
As Chandrachud J pointed out in his ruling, this could have a significant bearing on the outcome of the pending review of Section 377 that will be decided in an ‘appropriate proceeding’ on the basis of ‘constitutional validity.’
“The rights of lesbian, gay, bisexual and transgender population cannot be construed to be ‘so-called rights’… Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine.”
In the midst of a gloomy right-wing political climate, the SC has given us some hope to now look forward to right to privacy in the Aadhar case and the legalisation of homosexuality in the country.
You go Supreme Court Justices!