‘The right to privacy and the protection of sexual orientation lies at the core of the fundamental rights,’ the court said.

The decision of the nine-judge Constitution Bench of the Supreme Court to unanimously uphold a fundamental right to privacy on Thursday is being seen largely in terms of its likely impact on Aadhaar, the government’s massive unique identity project. But the judgment actually goes far beyond Aadhaar. Among the matters likely to be affected by the decision is the Supreme Court’s previous judgment upholding Section 377, a provision in the Indian Penal Code which criminalises gay sex.

A bench of Justice GS Singhvi and SK Mukhopdhaya had in 2013 upheld Section 377, even though the Delhi High Court had earlier struck it down for being discriminatory. The order, authored by Singhvi, pointed out that since only a “minuscule fraction of the country’s population” was affected by the issue, it was not sound enough basis to strike down a penal provision on grounds of discrimination.

Justice DY Chandrachud’s opinion in the Right to Privacy case, which was also signed by Chief Justice of India JS Khehar, Justice RK Agrawal and Justice S Abdul Nazeer, fully examines Singhvi’s judgment with a conclusion that should cheer those hoping to see 377 struck down yet again.

Excerpts from the order (emphases added):

“That ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” 

Chandrachud’s order brings up the matter as one of the “discordant notes” in the history of Indian jurisprudence when it comes to past approaches to privacy. Indeed, Chandrachud is quite clear about what he is doing here, saying that “when histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.”

He goes further in examining Singhvi’s decision in the 377 case, referred to as “Koushal”, based on the full title of the case, ‘Suresh Kumar Koushal vs Naz foundation.’

 “The view in Koushal that the High Court had erroneously relied upon international precedents ‘in its anxiety to protect the so-called rights of LGBT. persons’ is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression ‘so-called’ seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

There is currently a petition for a larger bench to take up the matter of Section 377, so Chandrachud et al do not go so far as to strike Singhvi’s judgment down. Yet the order is unambiguous about what it hopes to see done.

“The invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place…The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.

Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.”