Supreme Court’s privacy ruling rekindled hope on Sec 377

On Monday, when the Supreme Court agreed to hear the petitions filed by some eminent citizens, all of who argued that fundamental rights were getting affected due to the continuation of Section 377 of the Indian Penal Code on the statute books, it was possibly taking a cue from the observations made by a larger bench in the landmark case that decided that privacy is a right guaranteed by the Constitution.

During hearings in the privacy matter, a member of the nine-judge Constitution bench had observed, “Marriage, procreation are facets of privacy… sexual orientation is also about privacy. If we say there is a fundamental right to privacy, our judgment in Naz Foundation becomes vulnerable.”

The judgment in the issue also referred to sexual orientation of the citizens, with the court observing that the Right to Privacy and the protection of sexual orientation were at the core of fundamental rights guaranteed by Articles 14, 15 and 21

It had also come down on discrimination against an individual on the basis of sexual orientation, holding it to be offensive to the dignity and self-worth of the individual.

In fact, even the Delhi High Court bench headed by then Chief Justice AP Shah, while deciding the issue, had struck down the provision of Section 377 which criminalised consensual sexual acts of adults in private, had held that it violated the fundamental right of life and liberty of such consenting adults.

The HC had also directed that its judgment would be in force till Parliament decided to amend the law to give force to the recommendation of the Law Commission of India.