'Sexual orientation essential attribute of privacy': SC’s verdict could impact Section 377
In several references in the judgement, Justice Chandrachud on Thursday dismissed the reasons cited by the Supreme Court in upholding Section 377 that criminalises gay sex
The unanimous judgement by the nine-judge bench of the Supreme Court holding privacy as a fundamental right is largely being seen from the viewpoint of its likely impact on the government’s Aadhaar scheme which is also being heard in the top court.
While the fate of the Aadhaar will be decided by a five-judge bench of the apex court, a reading of the judgement suggests that the verdict is set to have far-reaching consequences for several other cases currently before the top court.
One of the primary among them is the impact the verdict on privacy could have on Article 377, the provision under law that criminalises gay sex.
The Supreme Court judgement today made several references to its own 2013 order by another bench and the Delhi High Court’s order of 2009 on Section 377 that found it violative of Articles 14, 19 and 21.
In 2013, a Supreme Court bench of Justice GS Singhvi and SK Mukhopdhaya upheld Section 377. The order authored by Singhvi observed 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 J 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 the 2013 judgment.
Referring to the reasons cited by the bench headed by Justice Singhvi, Justice Chandrachud observes that neither of them “can be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution”.
Here is what Justice Chandrachud opined in the judgement on Thursday:
“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.”
Justice Chandrachud then goes on to further examine Justice Singhvi’s 2013 decision, 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.”
Noting that the challenge to Section 377 is pending consideration before a larger SC bench, the order leaves its constitutional validity to be decided in an appropriate proceeding.
“The decision in Koushal presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is misplaced because 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. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. 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.”