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Fundamental Right To Privacy Hinders Room For Section 377

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 private.

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 Constitution. “

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 nine judges.

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 privacy.

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 involved.

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.

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