Section 377 to go? How SC’s privacy verdict set the tone for relook at law criminalising gay sex

By: | Published: January 8, 2018 2:18 PM

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, the Sc had observed in its 2017 privacy judgement.

LGBT activist during the 16th Kolkata Rainbow pride walk 2017 in South Kolkata on Sunday, December 10, 2017.Express photo by Partha Paul.

In what gay activists are seeing as a major boost in their fight for repealing of a contentious law that makes consensual sexual acts punishable under law, the Supreme Court today said that there was need to revisit the top court’s own verdict of 2013 that upheld the constitutional validity of Section 377 of the Indian Penal Code.

In 2013, the Supreme Court had turned down a verdict of the Delhi High Court that read down Section 377 as violative of Articles 21, 14 and 15 of the Constitution. Upholding the validity of Section 377, a Supreme Court bench of Justice GS Singhvi and SK Mukhopdhaya observed that since only a “minuscule fraction of the country’s population” was affected by the issue, it was not sound enough basis to strike down a penal provision on grounds of discrimination.

The top court’s decision on Monday to reopen the debate on Section 377 and criminalisation of consensual gay sex finds its genesis in the landmark 2017 verdict in the Right To Privacy case by a nine-judge bench of the top court.

A look at the observations of the top court with respect to its own 2013 order underlined the court’s intent to have a relook at the contentious provision. In a detailed examination of the 2013 verdict of the top court, Justice J Chandrachud’s opinion in the Right to Privacy case, also signed by the then Chief Justice of India JS Khehar, Justice RK Agrawal and Justice S Abdul Nazeer, hinted at where the SC had erred in its judgment striking down the High Court order of 2009.

Here is what Justice Chandrachud opined in the Right To Privacy judgement:

“That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. 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 guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.

Read Also: Gay sex debate: SC refers plea against section 377 of IPC seeking decriminalisation of homosexuality to larger bench

“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. 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.”

Justice Chandrachud then goes on to further examine Justice Singhvi’s 2013 decision, referred to as “Koushal”, based on the full title of the case, ‘Suresh Kumar Koushal vs Naz foundation.’

“The view in Koushal that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT. persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. 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.”

Noting that the challenge to Section 377 is pending consideration before a larger SC bench, the order leaves its constitutional validity to be decided in an appropriate proceeding.

“The decision in Koushal presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.

“The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.”

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