The Supreme Court said that right to privacy and the protection of sexual orientation lie at the core of the fundamental rights which are guaranteed by Articles 14, 15 and 21 of the Indian Constitution.
The Supreme Court’s judgment on right to privacy refers to the 2013 judgment in the Naz Foundation case on homosexuality. According to SC, sexual orientation is an essential attribute of privacy.
About section 377
Section 377 of the IPC states that Whoever, voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, Or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine or in simple words any form of unnatural sex such as homosexuality etc.
Section 377 ban acts of homosexuality as well as some act of heterosexuality which are not natural like anal or oral sex.
Supreme Court On Section 377 And Right To Privacy
The Supreme Court, in its recent judgment on privacy declared that right to privacy and the protection of sexual orientation are the core of fundamental rights which must be protected.
Very small fraction of the country’s population composed of lesbians, gays, bisexuals or transgenders, which is not a sustainable basis to reject the right to privacy to them.
Sexual orientation is an essential attribute of privacy, and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.
The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”, the court observed. The nine-judge bench observed that the purpose of uplifting certain rights to the stature of guaranteed fundamental rights is to protect their implementation from the contempt of majorities, whether legislative or popular.
The section was read down with respect to sex between consenting adults by the Delhi High Court in July 2009.
That judgement was overturned by the Supreme Court of India (SC) on 11 December 2013 with the Court holding that amending or repealing section 377 should be a matter left to Parliament, not the judiciary.
On 6 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for hearing in the SC. The three-member bench headed by the then Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.
On 24 August 2017 in a landmark judgment (also known as the Puttuswamy judgment), the SC had upheld the Right to Privacy as a fundamental right under the Constitution. The SC also had called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. The Puttuswamy judgment is believed to have implications for section 377 as consensual sexual acts in private can no longer be overseen by law