New Delhi: The debate surrounding the right to privacy took an interesting turn on Wednesday with the Supreme Court indicating that its judgment against homosexuality may get reopened if privacy is assigned the status of a fundamental right.
A nine-judge bench, led by Chief Justice of India J S Khehar, observed that sexual orientation was a matter of privacy and if the court were to hold privacy as a fundamental right, then the 2013 judgment against homosexuality would be susceptible to a fresh legal challenge.
As the bench discussed the facets of the right to privacy, Justice D Y Chandrachud said it will be “extraordinarily dangerous” to give an exhaustive catalogue of what will constitute privacy.
“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,” observed the judge.
In Naz Foundation case, a two-judge bench had in 2013 ruled that Section 377 will continue making gay sex — “irrespective of age and consent” — an offence.
The court had held that Section 377 did “not suffer from any constitutional infirmity” and that it was for Parliament “to consider the desirability and propriety of deleting Section 377 from the statute book or amend it. Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal," is punishable with imprisonment from 10 years to life.
This judgment had turned the clock back on the rights of homosexuals in the country, as the SC set aside the historic 2009 Delhi High Court judgment that decriminalised gay sex by holding that Section 377 of the Indian Penal Code, by criminalising consensual sexual acts of adults in private, violated the principles of equality and non-discrimination in the Constitution.
The review petition filed by Naz Foundation against this judgment was dismissed in 2014. But the case is still alive since the curative petition is still pending before the top court.
If the nine-judge bench elevates the status of the right to privacy, the ruling will come handy for Naz Foundation, which has asserted that private acts of consensual sex between consenting adults in private could not be criminalized by sanction of law.
Further, an authoritative ruling by the nine-judge bench will bind the smaller benches and therefore, the bench hearing the curative petition in Naz Foundation case would have to adhere to the principles evolved by the larger bench.