Right to privacy: LGBT group says SC ruling to boost fight against Section 377
The court stopped short of giving a ruling on Section 377 of the Indian Penal Code that criminalises sex between consenting gay adults.india Updated: Aug 25, 2017 00:47 IST
The Supreme Court held out hope for the lesbian, gay, bisexual and transgender (LGBT) community in a landmark judgment on Thursday, saying right to privacy cannot be denied to them merely because they are a “miniscule fraction” of India’s 1.25 billion people.
“Sexual orientation is an essential attribute of privacy,” the court said, virtually reopening the 2013 judgment on gay rights.
“Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual … The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Article 14, 15 and 21 of the Constitution,” it added.
The court stopped short of giving a ruling on Section 377 of the Indian Penal Code that criminalises sex between consenting gay adults, saying it “would leave the constitutional validity to be decided in an appropriate proceeding”.
In July 2009, the Delhi high court read down Section 377. But the Supreme Court reversed the verdict and re-criminalised gay sex in December 2013.
The LGBT community across India welcomed the top court’s privacy ruling on Thursday, saying it will boost their fight against the 2013 judgment — popularly known as the Naz verdict after Naz Foundation, an NGO, which filed the petition.
The court has left it to the Parliament to scrap Section 377 that bans “unnatural sex”.
“I welcome this judgment. It is a relief to hear sexuality spoken of in the language of rights and dignity,” said Gautam Bhan, professor, activist and one of the original petitioners against Section 377.
Lawyers believe Thursday’s verdict will help the curative petition against the 2013 judgment. “I don’t think Koushal will be able to withstand this challenge in the curative petition,” senior advocate Anand Grover said.
Besides gay rights, the privacy verdict could affect powers of police to arbitrarily conduct search-and-seize operations under Maharashtra rules banning cow slaughter and beef.
The Bombay high court had struck down this privilege to police and the Maharashtra government has challenged the order in the Supreme Court.
The intrusive two-finger medical test conducted on rape survivors too could fall foul of the privacy verdict. Also efforts to ban adult pornography might hit a roadblock.
The DNA profiling bill is another subject that might get influenced by the privacy judgment.
The biggest concern is that the bill has left the task of defining privacy and security safeguards to regulations, which include appropriate use of DNA data and timely removal of obsolete or inaccurate information.
False DNA matches can spark privacy concerns. Now that the top court upheld the right to privacy, chances of the bill being shelved are high, unless all safety regulations are taken into account.
First Published: Aug 24, 2017 23:12 IST