New Delhi, Aug 24: The Supreme Court today in its ruling said that homosexuality is a matter of privacy and in this regard Section 377 judgment needs to be set aside. Justice Chandrachud said that the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. With the current ruling which also makes Section 377 a matter of contention, the apex court’s earlier verdicts on the rights of the LGBTQ Indians are likely to be challenged.
Justice Chandrachud in his historic ruling on the right to privacy observed that privacy is an “intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude.” Justice Chandrachud said that sexual orientation is an essential attribute of privacy and any type of discrimination against a section of individuals on the basis of their 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,” he said in the ruling. (Also Read: Supreme Court Declares Privacy a Fundamental Right Under Article 21 – A Timeline of Hearing)
He also observed that the exercise of the right poses a grave danger to the unhindered fulfillment 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 has dealt with the privacy Koushal dignity based claims of LGBT persons on this aspect,” he observed.
In 2013, the apex court had upheld Section 377 which discriminates against a section of the society on the basis of their sexual orientation. In 2012, one of the grounds to strike down Section 377 by the Delhi High Court was privacy. The top court, however, had overturned the ruling a year later.