India has been living a futile dream of being developed whilst holding the
baggage from its past. The irony being a country that preaches Right to Equality
for all its citizens, explicitly lets Section 377 decide the fate of its
minority. Adding to the irony, the baggage that has been in existence from the
19th Century owing to the British marks the 50th anniversary of the abolition of
the law in its own country and yet the loop continues in India. In simple words,
Section 377 is an old-fangled law which makes gay sexual intercourse a crime
punishable up to life imprisonment and curbs the Fundamental Rights guarded
under Article 14, 15 and 21 of The Indian Constitution.
Despite all this, a ray of hope acting as a re-assurance to millions still
exists. The approach to the abolition of Section 377 hasn’t been that stagnant
after all. The context in which the case is fought has changed over time even
when the reason remains the same.
It all started back in 2009 when a Public Interest Litigation was filed by a
Non-governmental sex workers organisation namely, The Naz Foundation in the
Delhi High Court. Under this landmark judgement Section 377 was struck down on
the grounds of violating Right to Equality, Life and Liberty as guarded by the
Indian Constitution which criminalizes consensual sexual acts of adults in
The judgement was hailed but had its short-lived glory. There was a cruel blown
when the Supreme Court reversed the verdict passed by the Delhi High Court in
the favor of LGBTQ rights. A two-judge bench brought back the 150 years old,
Section 377 criminalizing homosexuality yet again regardless of consent and age.
Appeals brought by parties merged with religion-guided views against the High
Court verdict were heard and addressed in their favor.
The apex court stated, "While reading down Section 377, the division bench of
the High Court overlooked that a minuscule fraction of the country's population
constitute lesbians, gays, bisexuals or transgenders and in the last more than
150 years less than 200 persons have been prosecuted for committing offence
under Section 377 IPC and this cannot be made a sound basis for declaring the
section ultra vires the provisions of Articles 14, 15 and 21 of the
We wholeheartedly embraced the decriminalization of Section 377 by the Delhi
High Court as a progressive and much-needed amendment only to go back in time
with the Apex Court’s regressive approach after four years.
But fortunately, not all is lost, presently the Supreme Court has contemplated
revisiting the 2013 verdict which has hurt the sentiments of millions. A fresh
layer of debates has constituted the active revival of this Section.
The turning point came on 24th August 2017 when Right to Privacy officially
became a part of the Fundamental Rights of Indian citizens. The term privacy
implies the right of a person to be left alone and be protected from unwarranted
publicity with an end to interference from the public in areas which necessarily
doesn’t concern them. With the explicit inclusion of the latest fundamental
right, anything that doesn’t happen in open doors is protected by the
Constitution. Thus, this right can be read in the ambit of Section 377.
If one can recollect the instance of Professor S. R. Siras at Aligarh Muslim
University, local reporters burst into his room and recorded the footage. This
sort of infringement can't occur now. The judgment unequivocally observed the
use of the privilege to privacy in connection with sexual orientation.
The anti-discrimination and equality bill introduced by Dr Shashi Tharoor can
finally be put to some course of action. The Supreme Court in its 547-page
judgment on the right to privacy incorporates the parts of the 2013 Naz
Foundation Judgment and notices that sexual orientation is an indispensable
fragment of privacy.
The Relation Found Between Homosexuality And Privacy:
· The Supreme Court expressed that the right to privacy and the insurance of
sexual orientation are at the core of the basic rights ensured by Articles 14,
15 and 21 of the Constitution.
The Court noticed that sexual preference is a fundamental trait of privacy and
that inequality against a person considering sexual orientation is significantly
detrimental to the nobility and self-esteem of the person.
The goal of raising certain rights to the stature of fundamental basic rights is
to separate their activity from the hatred of majority, observed the seat of
The privileges of lesbians, gays, bisexuals and transgender individuals can’t be
deciphered as “so-called rights” and a little portion of the nation's populace
comprise these people isn't an enduring reason for denying the privilege to
The observations of the 9 judges' board are orbiter dicta, which implies that
the said statement above isn't legally binding yet but can have a solid effect
when the court hears a healing movement challenging Section 377.
I am proud that our courts have rendered such a judgment. What people need to
understand is that the judgment of the Delhi High Court had been a
decriminalization of homosexuality for consenting adults. It was not as if great
rights were being given to LGBT people. They do not automatically acquire the
rights that all other citizens take for granted, such as the right to marry, the
right to adopt, etc. But decriminalization is the first necessary step and the
right to privacy would have an enormous role to play.
We live in the 21st century and it is time to free ourselves from the hindrances
of orthodoxy and to adopt progressive laws. Homosexuals do not harm society,
criminals do. Homosexuals are not detrimental to society because consent is
The privacy decision conjointly shows the strength of our judiciary by
recognizing that the mistakes of the past will and can be corrected. It’s
comforting that the law continues to shield individual rights and freedoms from
the unreasonable acts of the state.