Right to Privacy Set The Ball Rolling For the Section 377 Review

SC’s move to review the draconian Section 377 was made possible by the August 2017 decision on Right to Privacy.

(The Supreme Court, on 8 January, agreed to reconsider its 2013 decision to criminalise homosexuality. The SC has decided to review the draconian Section 377 of the Indian Penal Code, a move made possible by the apex court’s August 2017 decision on Right to Privacy. Here’s a look back at the judgement and the cascading effect it was predicted to have. This article was first published on 24 August 2017.)

The giant leap for Right to Privacy could be a small step towards decriminalizing the draconian Section 377 of the Indian Penal Code, offering a ray of hope to the LGBTQ community.

A nine-judge Constitution bench of the the Supreme Court today accorded the status of a fundamental right to one’s right to privacy. In dealing with the legal definition of ‘privacy’, it also delved, rather extensively into how a flawed interpretation was applied to the Naz Foundation case in 2013. Naz Foundation led the crusade for removing homosexual acts between two consenting adults out of the purview of the penal code.

The Supreme Court in no uncertain words said:

The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.

In 2013, a two-judge bench of the Supreme Court turned the clock back on the fight for equal rights when it said that homosexuality or unnatural sex between two consenting adults under Section 377 of the Indian Penal Code is illegal and will continue to be an offense. The court said that Section 377 did not suffer from any “constitutional infirmity”.

The top court had, in effect, set aside a historic Delhi High Court judgment that had decriminalized homosexuality.

While hearing arguments on the Right to Privacy on Thursday, Justice D Y Chandrachud indicated how the decision by the Constitution Bench could impact the top court’s decision on homosexuality.

It will be extraordinarily dangerous to give an exhaustive catalogue of what will constitute privacy. Marriage procreation are facets of privacy… sexual orientation is also about privacy. If we say there is a fundamental right to privacy, our judgement in Naz Foundation becomes vulnerable.  

A review petition filed by Naz Foundation against the 2013 judgment was dismissed in 2014. But a curative petition is still pending before the top court.

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