Sec 377 drawn into privacy debate

In an interesting turn of events, the Supreme Court observed that the issue of homosexuality would need to be revisited if the Right to Privacy was ruled to be fundamental. The gay community in India may have reasons to cheer as this opens up an avenue where decriminalisation of homosexuality can be reconsidered.

The observation came from a nine-judge bench which was hearing matters pertaining to Right to Privacy as a fundamental right. The bench led by the Chief Justice of India JS Khehar was formed in pursuance to matters pertaining to petitions challenging the constitutional validity of Aadhar.

Speaking on the scope of privacy, Justice DY Chandrachud said: "What would be the scope of the right? Would it include marriage – probably yes; procreation – probably yes; sexual orientation – probably yes. The moment we say there is Right to Privacy, the order in Naz Foundation becomes vulnerable."

If the bench agrees that sexual orientation comes under the ambit of the Right to Privacy, then the 2013 Naz Foundation order where the top court re-criminalised homosexuality needs to be revisited.

The bench disagreed with senior advocate Gopal Subramanium who submitted that privacy was the essence of liberty.