The nine-member bench of the Supreme Court (SC) that upheld the constitutionality of the Right to Privacy also gave a body blow to Section 377 of the Indian Penal Code (IPC), which discriminates against the LGBTQ community by limiting their freedom to express their chosen gender identity and sexual behaviour in adult consensual relationships.
In several powerful passages in the judgement, the full text of which can be read here, the judges spoke against Section 377, which was upheld by another bench of the Supreme Court in 2013. In 2009, the Delhi High Court had found it violating Articles 14, 19 and 21 in a previous ruling, those same sections that the nine-member bench had also cited to argue against the unconstitutionality of Section 377.
The SC's observations, which unequivocally condemn the 2013 judgment, are worth quoting at length. After describing the juridical premises of the 2009 and 2013 rulings, it goes on to dismiss the previous SC bench's reason for upholding Section 377.
In the 2013 verdict, the SC had said Section 377 affects only a "minuscule minority" of the country and used it as a reason to let it stay. The nine-member bench did not hold back, while reacting to this unfortunate of choice of phrase. "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," it says on p 123, before going on to add that:
The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.
Pointing out that sexual minorities face "grave dangers" and try to lead "discrete and insular lives" simply because their views differ from the mainstream, it says:
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.
With regard to the use of the phrase "so-called rights" of LGBTQ people in the 2013 ruling, the bench comes down hard as well.
The expression "so-called" seems to suggest the exercise of a liberty in the garb of a right which is illusory. 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.
While leaving the interpretation of the right to privacy to the appropriate bench hearing a curative petition to read down Section 377 of IPC, the bench has opened a door of hope for sexual minorities living in India.
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