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India: Supreme Court privacy verdict, strong case for protection of sexual orientation

The Supreme Court in its 547-page judgment on right to privacy refers to the 2013 judgment in the Naz Foundation case on homosexuality, and says that sexual orientation is an essential attribute of privacy.
The observations of the nine-judge Constitution bench are obiter dicta, in other words not legally binding, but could have a significant impact when the court hears the curative petition challenging Section 377.

Referring to the Suresh Kumar Koushal vs Naz Foundation case, wherein a two-judge bench of the Supreme Court upheld Section 377 of the Indian Penal Code (IPC), in effect criminalising homosexuality, the Supreme Court today disagreed with some of the observations of the same court, made in 2013.
WHAT THE SUPREME COURT SAID ON HOMOSEXUALITY IN THE PRIVACY JUDGMENT:
The Supreme Court, in its judgment on privacy, said that 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.

The court noted that sexual orientation is an essential attribute of privacy, and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.

“That a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders is not a sustainable basis to deny the right to privacy,” the Supreme Court said in its judgment.

“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular,” the nine-judge bench observed.

The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”, the court observed.

WHAT THE TWO-JUDGE BENCH OF SUPREME COURT HAD SAID IN 2013:

The Division Bench of the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature.

 

SOURCE: Indiatoday IN, Edited by Kritika Banerjee
New Delhi, August 24, 2017 | UPDATED 16:23 IST